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EXHIBIT 10.9.3
THIS CONTRACT IS SUBJECT TO ARBITRATION PURSUANT TO S.C. CODE SS. 15-48-10*
STATE OF SOUTH CAROLINA )
) EMPLOYMENT AGREEMENT
COUNTY OF GREENVILLE )
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into
effective as of the 15th day of March, 2000 (the "Effective Date") by and
between Xxxxx X. Xxxxxx, an individual (the "Employee"), and TriVergent
Communications, Inc., a South Carolina corporation headquartered in Greenville,
South Carolina (the "Company"). As used herein, the term "Company" shall include
the Company and any and all of its subsidiaries where the context so applies.
W I T N E S S E T H
WHEREAS, the Company desires to enter into an employment relationship
with Employee on certain terms and conditions as set forth herein; and
WHEREAS, Employee has agreed to accept such employment upon the terms
and conditions as set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Position. Subject to the terms and conditions of this Agreement, the Company
hereby employs the Employee and Employee hereby accepts such employment as
General Counsel of the Company reporting to the Chief Executive Officer. As soon
as practicable, the Company will seek the approval of the Company's Board of
Directors to designate Employee as Senior Vice President of Law, and Secretary.
2. Definitions. For purposes of this Agreement, the following terms shall have
the meanings specified below.
"Change in Control" shall mean:
(i) the acquisition, directly or indirectly, by any Person
(other than (A) any employee plan established by the Company, (B) the
Company or any of its affiliates (as defined in Rule 12b-2 promulgated
under the Exchange Act), (C) an underwriter temporarily holding
securities pursuant to an offering of such securities, or (D) a
corporation owned, directly or indirectly, by stockholders of the
Company in substantially the same proportions as their ownership of the
Company), directly or indirectly, of securities of the Company (not
including in the securities beneficially owned by such Person any
securities acquired directly from the Company) representing an
aggregate of 20% or more of the combined voting power of the Company's
then
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* UNLESS THE UNITED STATES ARBITRATION ACT APPLIES.
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outstanding voting securities;
(ii) during any period of up to two consecutive years
individuals who, at the beginning of such period, constitute the Board
cease for any reason to constitute at least a majority thereof,
provided that any person who becomes a director subsequent to the
beginning of such period and whose nomination for election is approved
by at least two-thirds of the directors then still in office who either
were directors at the beginning of such period or whose election or
nomination for election was previously so approved (other than a
director (A) whose initial assumption of office is in connection with
an actual or threatened election contest relating to the election of
the directors of the Company, as such terms are used in Rule 14a-11 of
Regulation 14A under the Exchange Act, or (B) who was designated by a
Person who has entered into an agreement with the Company to effect a
transaction described in clause (i), (iii) or (iv) hereof) shall be
deemed a director as of the beginning of such period;
(iii) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation other than (A)
a merger or consolidation that 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 entity or any parent thereof), in
combination with the ownership of any trustee or other fiduciary
holding securities under an employee benefit plan of any Company, at
least 51% of the combined voting power of the voting securities of the
Company or such surviving entity or any parent thereof outstanding
immediately after such merger or consolidation, or (B) a merger or
consolidation effected to implement a recapitalization of the Company
(or similar transaction) in which no Person is or becomes the
beneficial owner (as defined in clause (i) above), directly or
indirectly, of securities of the Company (not including in the
securities beneficially owned by such Person any securities acquired
directly from the Company) representing 25% or more of the combined
voting power of the Company's then outstanding voting securities; or
(C) a plan of complete liquidation of the Company or an agreement for
the sale or disposition of the Company of all or substantially all of
the Company's assets; or
(iv) the occurrence of any other event or circumstance which
is not covered by (i) through (iii) above which the Board determines
affects control of the Company and, in order to implement the purposes
of this Agreement as set forth above, adopts a resolution that such
event or circumstance constitutes a Change in Control for the purposes
of this Agreement.
"Cause" shall mean:
(i) in the absence of a Change in Control: (a) fraud; or (b)
embezzlement; or (c) conviction of the Employee of any felony; or (d) a
material breach of, or the willful failure or refusal by the Employee
to perform and discharge the Employee's duties, responsibilities and
obligations under, this Agreement, as determined by the Board in its
reasonable judgment, or the repeated failure of the Employee to follow
reasonable directives and performance standards established by the
Board, but only if (1) the Employee has been provided with written
notice of any assertion that there is a basis for termination for cause
which notice shall specify in reasonable detail specific facts
regarding any such assertion, (2) such written notice is provided to
the Employee a reasonable time before the Board meets to consider any
possible termination for cause, (3) at or prior to the meeting of the
Board to consider the matters described in the written notice, an
opportunity is provided to the Employee and her counsel to be heard
before the Board with respect to the matters described in the written
notice, (4) any resolution or other Board action held with respect to
any deliberation regarding or decision to terminate the Employee for
cause is duly adopted by a vote of a majority of the entire Board of
the Company at a meeting of the Board
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called and held and (5) the Employee is promptly provided with a copy
of the resolution or other corporate action taken with respect to such
termination. No act or failure to act by the Employee shall be
considered willful unless done or omitted to be done by her not in good
faith and without reasonable belief that her action or omission was in
the best interests of the Company; or (e) any act of moral turpitude or
willful misconduct by the Employee which is intended to result in
personal enrichment of the Employee at the expense of the Company, or
any of its affiliates, or which has a material adverse impact on the
business or reputation of the Company or any of its affiliates (such
determination to be made by the Board in its reasonable judgment); or
(f) intentional material damage to the property or business of the
Company; or (g) gross negligence; or (h) the ineligibility of the
Employee to perform her duties because of a ruling, directive or other
action by any agency of the United States or any state of the United
States having regulatory authority over the Company.
(ii) after a Change in Control: (a) fraud; (b) embezzlement;
(c) conviction of the Employee of any felony; (d) the willful and
continued failure of the Employee substantially to perform her duties
with the Company (other than any failure due to physical or mental
incapacity) or the willful misconduct materially and demonstrably
injurious to the Company, in each case, as determined in the reasonable
discretion of the Board, but only if (1) the Employee has been provided
with written notice of any assertion that there is a basis for
termination for cause which notice shall specify in reasonable detail
specific facts regarding any such assertion, (2) such written notice is
provided to the Employee a reasonable time before the Board meets to
consider any possible termination for cause, (3) at or prior to the
meeting of the Board to consider the matters described in the written
notice, an opportunity is provided to the Employee and her counsel to
be heard before the Board with respect to the matters described in the
written notice, (4) any resolution or other Board action held with
respect to any deliberation regarding or decision to terminate the
Employee for cause is duly adopted by a vote of a majority of the
entire Board of the Company at a meeting of the Board called and held
and (5) the Employee is promptly provided with a copy of the resolution
or other corporate action taken with respect to such termination;. No
act or failure to act by the Employee shall be considered willful
unless done or omitted to be done by her not in good faith and without
reasonable belief that her action or omission was in the best interests
of the Company. The unwillingness of the Employee to accept any or all
of a change in the nature or scope of her position, authorities or
duties, a reduction in her total compensation or benefits, a relocation
that she deems unreasonable in light of her personal circumstances, or
other action by or request of the Company in respect of her position,
authority, or responsibility that she reasonably deems to be contrary
to this Agreement, may not be considered by the Board to be a failure
to perform or misconduct by the Employee.
"Code" shall mean the Internal Revenue Code of 1986, as amended, or any
successor statute, rule or regulation of similar effect.
"Disability" or "Disabled" shall mean the Employee's inability as a
result of physical or mental incapacity to substantially perform her
duties for the Company on a full-time basis for a period of six (6)
months.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Involuntary Termination" shall mean the termination of Employee's
employment by the Employee which is due to (i) a significant and
material change of the Employee's responsibilities, position
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authority or duties; or (ii) a significant and material change in the
terms or status of this Agreement; or (iii) a significant and material
reduction in the Employee's compensation or benefits.
"Person" shall mean any individual, corporation, bank, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization or other entity.
3. Duties. During the term hereof, the Employee shall have such duties and
authority as are typical of someone in her position with a company such as the
Company, including, without limitation, those specified in the Company's bylaws
or those reasonably set forth by the Board. Employee agrees that during the Term
hereof, she will devote her full time, attention and energies to the diligent
performance of her duties. Employee shall not, without the prior written consent
of the Company, at any time during the Term hereof (i) accept employment with,
or render services of a business, professional or commercial nature to, any
Person other than the Company, (ii) engage in any venture or activity which the
Company may in good faith consider to be competitive with or adverse to the
business of the Company or of any affiliate of the Company, whether alone, as a
partner, or as an officer, director, employee or shareholder or otherwise,
except that the ownership of not more than 5% of the stock or other equity
interest of any publicly traded corporation or other entity shall not be deemed
a violation of this Section, or (iii) engage in any venture or activity which
the Board may in good faith consider to interfere with Employee's performance of
her duties hereunder. The Company agrees that Employee may serve on the board of
and/or participate in industry and trade associations, so long as such
activities do not interfere with the discharge of her duties at the Company.
4. Term. Unless earlier terminated as provided herein, the Employee's employment
hereunder shall be for a rolling term of two years (the "Term") commencing on
the Effective Date hereof. This Agreement shall be deemed to extend each day for
an additional day automatically and without any action on behalf of either party
hereto.
4.1 Upon Employee's death or Disability, the Company shall have the
right to terminate this Agreement immediately. Upon such termination, the
Employee (or her estate) shall be entitled to receive from the Company as
severance upon such termination, the compensation and benefits, as provided in
Section 5, remaining in the Term.
4.2 At any time, the Company shall have the right to terminate
Employee's employment immediately for Cause, after which the Company's
obligation hereunder shall cease as of the date of the termination.
4.3 At any time, after March 24, 2001, for any or no reason, the
Company, by written notice to Employee, may cause this Agreement to cease to
extend automatically and, upon such notice, the Term of this Agreement shall be
the one year following the date of such notice, and this Agreement shall
terminate automatically upon the expiration of such Term, after which the
Company's obligation hereunder shall cease.
4.3.1 If the Company terminates the Agreement prior to a
Change in Control for any reason other than for Cause after it fixes the Term
pursuant to this section 4.3, the Employee shall be entitled to receive as
severance upon such termination, the compensation and benefits, as provided in
Section 5, remaining in the Term.
4.3.2 If the Company fixes the Term pursuant to this section
4.3 after a Change in Control, the Employee shall be entitled to receive as
severance upon such termination, twenty-four (24) months of her annual
compensation and benefits being paid at the time of termination, as provided in
Section 5.
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4.4 Employee shall have the right to terminate her employment hereunder
if (i) the Company materially breaches this Agreement and such breach is not
cured within 30 days after written notice of such breach is given by Employee to
the Company; (ii) there is an Involuntary Termination; or (iii) for no reason.
4.4.1 If Employee terminates her employment other than
pursuant to clauses (i) or (ii) of this Section 4.4, the Company's obligations
under this Agreement shall cease as of the date of such termination.
4.4.2 If Employee terminates her employment hereunder pursuant
to either clause (i) or clause (ii) of this Section 4.4, Employee shall be
entitled to receive twelve (12) months of her annual compensation and benefits
being paid at the time of termination, as provided in Section 5.
4.5 In the event of termination pursuant to Sections 4.3.1 or 4.3.2 or
Section 4.4.2:
4.5.1 the Employee shall be deemed to be credited with service
with the Company for such remaining Term for the purposes of the Company's
benefit plans; and
4.5.2 the Employee shall be deemed to have retired from the
Company and shall be entitled as of the termination date, or at such later time
as she may elect to commence receiving the total combined qualified and
non-qualified retirement benefit to which she is entitled hereunder, or her
total non-qualified retirement benefit hereunder if under the terms of the
Company's qualified retirement plan for salaried employees, she is not entitled
to a qualified benefit.
If any provision of this Section 4.5 cannot, in whole or in part, be
implemented and carried out under the terms of the applicable compensation,
benefit, or other plan or arrangement of the Company because the Employee has
ceased to be an actual employee of the Company, because the Employee has
insufficient or reduced credited service based upon her actual employment by the
Company, because the plan or arrangement has been terminated or amended after
the effective date of this Agreement, or because of any other reason, the
Company itself shall pay or otherwise provide the equivalent of such rights,
benefits and credits for such benefits to Employee, her dependents,
beneficiaries and estate.
4.6 Following a Change in Control, in addition to any other termination
payment contained in this Section 4 (the "Termination Payments"), the Employee
shall also be entitled to receive an additional payment in an amount equal to
all taxes (including any interest or penalties imposed with respect to such
taxes) owed by the Employee on these payments, including, without limitation,
any income taxes or excise taxes (including, without limitation, any tax imposed
by Section 4999 of the Code) and any interest and penalties imposed with respect
thereto.
4.7 Any Termination Payment shall be made immediately in a lump sum
payment.
5. Compensation And Benefits. In consideration of Employee's services and
covenants hereunder, Company shall pay to Employee the compensation and benefits
described below (which compensation shall be paid in accordance with the normal
compensation practices of the Company and shall be subject to such deductions
and withholdings as are required by law or policies of the Company in effect
from time to time):
5.1 Annual Salary. During the Term hereof, the Company shall pay to
Employee a base salary of $150,000. Thereafter, Employee's salary shall be
reviewed by the Compensation Committee of the Board at the beginning of each of
its fiscal years and, in its sole discretion, may be increased for such year.
5.2 Cash Bonus. In addition to the above salary, Employee shall receive
a guaranteed bonus of $50,000 in her first year, payable no later than December
31, 2000. Thereafter, Employee shall be
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eligible to receive an annual bonus of not less than $50,000 based upon the
achievement of certain performance goals for the Company as determined each year
by the Compensation Committee of the Board of Directors.
5.3 Benefits. Employee shall be entitled to share in any employee
benefits generally provided by the Company to its most highly ranking Employees
and officers for so long as the Company provides such benefits and to any other
benefits given to Employee in the sole discretion of the Board.
5.4 Sign-on Bonus. Employee shall receive a one-time sign-on bonus of
$150,000 payable on or before March 15, 2000.
5.5 Business expenses.
5.5.1 The Company shall reimburse Employee for all
reasonable business and professional expenses
incurred by Employee in connection with her
employment within thirty (30) days of the Company's
receipt of vouchers, receipts, or other appropriate
documentation.
5.5.2 The Company shall reimburse Employee up to $2000 per
month for living expenses and up to $2000 per month
for travel expenses incurred in connection with her
commute from Virginia to South Carolina, if such
expenses are expended and documented, through
September 15, 2000. Subsequent to September 15, 2000,
Company and Employee will evaluate whether
continuation of such reimbursement is warranted in
light of her overall compensation package and
relocation to South Carolina.
5.5.3 The Company shall reimburse Employee for all
reasonable and documented costs that Employee incurs
for relocating to Greenville, South Carolina, such as
seller's broker's commission, closing costs, and
moving expenses.
5.5.4 The Company shall reimburse Employee up to $25,000
per year for discretionary expenses.
5.6 Vacation. Employee shall be entitled to an annual vacation of not
more than three (3) weeks. Scheduling of such vacation shall be with the
reasonable consent of the Company.
5.7 Stock Purchase and Loan. The Company shall use its best efforts to
allow Employee to purchase up to 35,000 shares of Series C Convertible Preferred
Stock in the Company's current offering of up to 4,214,703 shares of Series C
Convertible Preferred Stock (expected to be consummated in March 2000), such
purchase to be at a price of $4.25 per share and on the same terms and
conditions applicable to other purchasers in such offering. To this end, Company
shall extend a loan to Employee on March 15, 2000 in the amount of $148,750
(evidenced by a Promissory Note in the form attached hereto). Such loan bears
simple interest at the rate of 10% per year, and the principal and interest on
such loan shall be due and payable on March 15, 2003. Employee shall pay
interest only on each anniversary of the Promissory Note until maturity.
5.8 Stock Options. Simultaneous to the execution of this Agreement, the
Company shall grant to Employee options to purchase 250,000 shares pursuant to
the Stock Option Agreement attached hereto.
6. Gross-Up of Payments. It is the intention of the parties that:
(i) the net amount of all Termination Payments retained by the
Employee after deduction for and payment of all applicable federal, state and
local taxes (the "Withholding Taxes") payable by or on behalf of the Employee
shall be equal to the gross amount of the Termination Payments without regard to
any such deductions or payments (the "Net Termination Payments") and
(ii) the net amount of all other payments or benefits received or to be
received by the Employee
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from the Company or one of its benefit plans as a direct or indirect result of
or in connection with a Change in Control or in connection with Termination
within one year of a Change in Control, from whatever source other than a
Termination Payment (the "Other Payments"), that are or become subject to the
tax (the "Excise Tax") imposed by Section 4999 of the Code, shall be equal to
the gross amount of the Other Payments without regard to deduction or payment or
any such Excise Tax.
Accordingly, the Termination Payments otherwise payable hereunder shall
be increased by an amount of cash (the "Withholding Gross-Up Payment") equal to
all Withholding Taxes payable by or on behalf of the Employee in respect of the
Termination Payments, including any Withholding Taxes as may be due in respect
of such additional amounts to be paid pursuant to this sentence as will result
in the Employee actually retaining an amount equal to the Net Termination
Payments. In addition, if the sum of the Termination Payments, the Withholding
Gross-Up Payment and the Other Payments (the "Total Payments") are or become
subject to the Excise Tax, the Company shall pay the Employee within 30 days of
the termination date an additional cash amount (the "Excise Gross-Up Payment")
such that the net amount actually retained by the Employee, after deduction for
or payment of any Excise Tax on the Total Payments and the sum of any
Withholding Taxes upon the payment provided by this sentence shall be equal to
the Total Payments (the "Net Total Payments"). For the purposes of determining
whether any of the Total Payments will be subject to the Excise Tax and the
amount of such Excise Tax, the following shall apply:
6.1 All "excess parachute payments" within the meaning of Section
280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless, in
the opinion of tax counsel selected by the Company's independent auditors and
acceptable to the Employee, such other payments or benefits (in whole or in
part) described in clause (a) above do not constitute parachute payments or such
excess parachute payments (in whole or in part) represent reasonable
compensation for services actually rendered within the meaning of Section
280(G)(b)(4) of the Code;
6.2 the amount of the Termination Payments which shall be treated as
subject to the Excise Tax shall be equal to the lesser of:
(i) the total amount of the Termination Payments; and
(ii) the amount of excess parachute payments within the
meaning of Sections 280G(b)(1) and (4) (after applying Sections 6.1 and
6.2 above)
6.3 the value of any non-cash benefits or any deferred payment or
benefit shall be determined by the Company's independent auditors in accordance
with the principles of Sections 280G(d)(3) and (4) of the Code; and
6.4 the Employee shall be deemed to pay federal income taxes, and state
and local income taxes in the state and locality of the Employee's residence on
the date of Termination, at the highest marginal rate of income taxation in
effect in the calendar year in which the Gross-Up Payment is to be made, net of
the maximum reduction in federal income taxes which could be obtained from
deduction of such state and local income taxes.
Provided, that in the event the Excise Tax or Withholding Taxes are
subsequently determined to be less than the amounts taken into account hereunder
at the time of the payment of the Withholding Gross-Up Payments or the Excise
Tax Gross-Up Payment, the Employee shall repay the Company the portion of such
payments attributable to such reduction, or in the event that the Excise Tax or
the Withholding Taxes are subsequently determined to exceed the amount taken
into account hereunder at the time of the
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payment of the Withholding Gross-Up Payment or the Excise Tax Gross-Up Payment
(including by reason of any payment the existence or amount of which cannot be
determined at the time of such payments), the Company shall make an additional
Gross-Up Payment in respect of such excess, in each case, payment to be made
within 30 days after the final determination of the amount of the reduction or
excess, as the case may be, together with interest thereon at the rate provided
in Section 1274(b)(2)(B) of the Code.
7. Confidential Information. Employee acknowledges that the proprietary
information, observations and data obtained by Employee while employed by the
Company concerning the business or affairs of the Company or any affiliate or
subsidiary thereof ("Confidential Information") is the property of the Company.
Therefore, Employee agrees not to disclose to any unauthorized person or use for
the Employee's account any Confidential Information without the prior written
consent of the Company. Upon request, Employee shall deliver to the Company at
the termination of this Employment Agreement, or at any other time the Company
may request, all memoranda, notes, plans, records, reports and other documents
(and copies thereof) relating to the Confidential Information or the business of
the Company, subject to the provisions of paragraph 7 hereof. The provisions of
this paragraph 7 shall not apply to the following:
a. information that is part, or becomes part, of the public domain,
through no act or omission of Employee;
b. information that was already known to Employee at the time of its
disclosure hereunder, including without limitation information gained
by virtue of Employee's past experience and know-how, but excluding
information gained as a result of his past representation of the
Company as one of its outside attorneys;
c. information that, subsequent to its disclosure hereunder, is
obtained by Employee from a third party who rightfully possesses such
information and has no obligation to maintain its confidentiality; and
d. information that is developed through the independent research of
Employee, without any reliance upon or use of information disclosed
hereunder.
The obligation not to disclose Confidential Information, as set forth
herein, is not intended to, nor shall it prohibit, Employee, consistent with the
Code of Professional Responsibility, from disclosing Confidential Information,
or parts thereof, pursuant to a lawfully issued subpoena, court order, statute
or regulations compelling such divulgence, provided that Employee gives
reasonable notice to the Company in advance of such divulgence so that the
Company may seek to quash the subpoena, obtain a protective order, or take other
appropriate measures under such circumstances and the Employee discloses only
the minimum necessary to comply with such subpoena, court order, statute or
regulation.
8. Assignment. The parties acknowledge that this Agreement has been entered into
due to, among other things, the special skills of Employee, and agree that
Employee may not assign any of her rights or delegate any of her duties or
obligations under this Agreement. The rights and obligations of Company under
this Agreement shall inure to the benefit of and shall be binding upon the
successors and assigns of the Company.
9. Notices. All notices, requests, demands, and other communications required or
permitted hereunder shall be in writing and shall be deemed to have been duly
given if delivered or seven days after mailing
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if mailed, first class, certified or registered mail, postage prepaid:
To the Company: TriVergent Communications, Inc.
000 X. Xxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Fax No. 000-000-0000
To Employee: Xxxxx X. Xxxxxx
0000 Xxxxxxx Xxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
Fax No. 000-000-0000
Any party may change the address to which notices, requests,
demands, and other communications shall be delivered or mailed
by giving notice thereof to the other party in the same manner
provided herein.
10. Provisions Severable. If any provision or covenant, or any part thereof, of
this Agreement should be held by any court to be invalid, illegal or
unenforceable, either in whole or in part, such invalidity, illegality or
unenforceability shall not affect the validity, legality or enforceability of
the remaining provisions or covenants, or any part thereof, of this Agreement,
all of which shall remain in full force and effect.
11. Dispute Resolution.
11.1 Mediation. If a dispute arises out of or in any way relates to
this Agreement or Employee's employment, and if the dispute cannot be settled
through negotiation, the parties agree first to try in good faith to settle the
dispute by mediation before resorting to arbitration, litigation, or some other
formal dispute resolution procedure. Any such dispute shall be submitted to a
mediator selected by mutual agreement of the parties. Unless the parties agree
to an alternative arrangement, the mediator's fee and expenses shall be equally
divided between the parties.
11.2 Arbitration. Should any dispute arising out of or in any way
relating to this Agreement or Employee's employment or the termination of
Employee's employment not be resolved by negotiation or mediation, the parties
agree to waive their right to a jury trial and agree to submit the dispute to
arbitration. Unless otherwise provided herein, the arbitration shall be
conducted by a single arbitrator in accordance with the National Rules for the
Resolution of Employment Disputes published by the American Arbitration
Association. The arbitration shall be conducted in Greenville County, South
Carolina. The arbitrator shall be selected by mutual agreement of the parties.
If the parties cannot agree on an arbitrator within thirty (30) days after
written request for arbitration is made by one party to the controversy, a
neutral arbitrator shall be appointed according to the procedures set forth in
the American Arbitration Association National Rules for the Resolution of
Employment Disputes. In rendering the award, the arbitrator shall have the
authority to resolve only the legal dispute between the parties, shall not have
the authority to abridge or enlarge substantive rights or remedies available
under existing law, and shall determine the rights and obligations of the
parties according to the substantive and procedural laws of South Carolina. In
addition, the arbitrator's decision and award shall be in writing and signed by
the arbitrator, and accompanied by a written concise explanation of the basis of
the award. The award rendered by the arbitrator shall be final and binding, and
judgment on the award may be entered in any court having
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jurisdiction thereof. The arbitrator is authorized to award any party a sum
deemed proper for the time, expense, and trouble of arbitration, including
arbitration fees and attorneys' fees.
11.3 Types of Claims. All legal claims brought by Employee against
Company related to this Agreement, the employment relationship, terms and
conditions of employment, and/or termination from employment are subject to this
dispute resolution procedure. These include, by way of example and without
limitation, any legal claims based on alleged discrimination or retaliation on
the basis of race, sex, religion, national origin, age or disability, whether
based on state or federal law; workers' compensation retaliation; defamation;
invasion of privacy; infliction of emotional distress and/or breach of an
express or implied contract. The above terms notwithstanding, any legal claim
brought by Employee or Company for or relating to workers' compensation,
unemployment compensation benefits, breach, violation or misappropriation of
Company's trade secrets, provisions of any confidentiality agreements or
noncompete agreements, and claims alleging status or membership with regard to
any employment benefit plan are not subject to this dispute resolution
procedure.
12. Waiver. Failure of either party to insist, in one or more instances, on
performance by the other in strict accordance with the terms and conditions of
this Agreement shall not be deemed a waiver or relinquishment of any right
granted in this Agreement or of the future performance of any such term or
condition. No waiver shall be valid unless in writing signed by the party sought
to be bound.
13. Company and Employee Representations. Employee represents and warrants to
Company that other than her expired agreement with her former employer, she is
subject to no agreement or obligation, which includes any non-competition or
confidentiality agreement. Employee agrees to hold Company and its officers,
directors, employees, managers, members, shareholders and agents harmless from
any claim (and the expenses associated therewith) arising from a breach of this
warranty and representation.
14. Amendments and Modifications. This Agreement may be amended or modified only
by a writing signed by other parties hereto. The parties hereby agree that this
Agreement contains the entire agreement and understanding by and between the
parties with respect to Employee's employment, and no representations, promises,
agreements, or understandings, written or oral, relating to the employment of
the Employee by the Company not contained herein shall be of any force or
effect.
15. Assignment of Intellectual Property. Employee agrees to promptly disclose to
Company, in writing, all inventions, discoveries and improvements devised by
Employee as part of her employment duties with Company, and hereby transfers and
assigns to Company all rights, title and interest, domestic and foreign, to such
inventions, etc. At the request of Company, Employee will execute, either during
or after her employment with Company, any documents, including applications for
patents and assignments, necessary or desired by Company. Employee will
cooperate with the filing and prosecution of any such patent applications
whenever Company so requests without further compensation. Employee attaches
hereto a complete list of all inventions that Employee made or conceived prior
to her employment by Company, if any exist, and Company agrees that these
inventions shall be excluded from this Agreement.
16. Governing Law. The validity and effect of this Agreement shall be governed
by and construed and enforced in accordance with the laws of the State of South
Carolina, without giving effect to South Carolina's rules of conflicts law, and
regardless of the place or places of its physical execution or performance.
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17. Captions. The captions contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
18. Counterparts. This Agreement may be executed in one or more counterparts,
all of which taken together shall constitute one instrument.
[signatures to follow]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
Witness Employee
_______________________________ _______________________________
Xxxxx X. Xxxxxx
TRIVERGENT COMMUNICATIONS, INC.
_______________________________ By:____________________________
Its: __________________________
Page 12 of 12
