EXHIBIT NUMBER 10.10
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT made as of July 28, 2002 by and between Centennial
Communications Corp., a corporation organized and subsisting under the laws of
Delaware and whose address for the purposes of this Agreement is 0000 Xxxxx 000,
Xxxx, Xxx Xxxxxx 00000 (the "Company") and Xxxxxx Xxxxxxxxxxx, an individual
residing at 000 Xxxxxxx Xxxxxxx, Xxxxxx, Xxxxxxxxxxxx 00000 ("Employee").
RECITALS
A. The Company desires to employ the Employee as its Executive Vice
President and Chief Financial Officer effective August 19, 2002, and in
such other capacities as may be permitted by this Agreement, and under
all of the terms, provisions and conditions set forth herein.
B. Employee is willing to accept such employment, and such other
employment as may be provided for herein, all under the terms,
provisions and conditions set forth herein.
C. This Agreement shall automatically terminate on August 18, 2002 in the
event that prior to August 18, 2002, the Company has not received
satisfactory results of Employee's pre-employment screening exam.
D. Employer has previously transmitted an Offer Letter dated as of July
25, 2002 (the "Offer Letter") containing certain compensation and
benefits to be provided to Employee during the Term, a copy of which is
attached hereto as Exhibit 1 and incorporated herein by reference.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein set forth and other good and valuable consideration, the receipt and
adequacy of which is mutually acknowledged, it is agreed by and between the
parties as follows:
1. Representations and Warranties
Employee represents and warrants that he is not subject to any
restrictive covenants or other agreements or legal restrictions (including any
non-compete agreement) in favor of any person which would in any way preclude,
inhibit, impair or limit his employment by the Company or the performance of his
duties, all as contemplated herein.
2. Employment
The Company hereby employs Employee and Employee accepts such
employment as Executive Vice President and Chief Financial Officer. In such
capacity, Employee shall be responsible for managing the financial operations of
the Company, subject to the direction and
control of the Chief Executive Officer and the Board of Directors of the
Company. In addition, Employee shall perform such duties and functions as are
consistent with his status as a senior executive officer of the Company. The
Employee shall devote his full time and attention to the performance of his
duties hereunder. The Company, in its sole discretion, may change the Employee's
duties from time to time upon notice to the Employee. At the direction of the
Chief Executive Officer or the Board of Directors of the Company, Employee shall
also serve in such other senior executive and/or other administrative capacities
with any subsidiaries of the Company ("Subsidiaries" or individually a
"Subsidiary," as hereafter defined), as they may determine.
3. Place of Employment
Employee shall render his services where and as required by the
Company, it being understood and agreed, however, that employee's base of
operations shall be the offices of the Company in Wall, New Jersey, and that
Employee shall not be required to render services on a permanent basis outside
of said region unless Employee otherwise agrees.
4. Term
4.1 Unless earlier terminated as provided in this Agreement, the term
of Employee's employment under this Agreement shall be for a period beginning on
the date hereof and ending on the one (1) year anniversary of the date hereof
(the "Initial Term").
4.2 The term of the Employee's employment under this Agreement shall be
automatically renewed for additional one-year terms (each a "Renewal Term") upon
the expiration of the Initial Term or any Renewal Term unless the Company or the
Employee delivers to the other, at least ninety (90) days prior to the
expiration of the Initial Term or the then current Renewal Term, as the case may
be, a written notice specifying that the Term of the Employee's employment will
not be renewed at the end of the Initial Term or such Renewal Term, as the case
may be. The Initial Term or, in the event that the Employee's employment
hereunder is earlier terminated as provided herein or renewed as provided in
this Section 4.2, such shorter or longer period, as the case may be, is
hereinafter called the "Term".
5. Compensation
5.1 Subject to prior termination, as compensation for all services
rendered and to be rendered by Employee hereunder and the fulfillment by
Employee of all of his obligations herein, the Company shall pay Employee a base
salary at the rate equal to U.S. $275,000 per year for each year of the Term on
such days as the Company normally pays its employees and subject to such
withholdings as may be required by law (said amount, together with any changes
thereto as may be determined from time to time by the Board of Directors of the
Company in its sole discretion, being hereinafter referred to as "Base Salary").
5.2 Nothing herein shall prevent or preclude the Board of Directors of
the Company or the applicable committee of the Board of Directors, in its sole
discretion, and from time to
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time, from awarding a bonus or bonuses to Employee for his service as an
Employee and/or from awarding or granting Employee (i) options to acquire shares
of stock in the Company, (ii) shares of stock in the Company or (iii) any other
incentive or stock related awards in addition to Base Salary. In exercising its
discretion with respect to whether a bonus should be awarded and the amount
thereof, the Board or the applicable Committee may consider, among other
factors, the contribution of Employee (x) to the growth in revenues, cash flow
and subscribers of the Company and those Subsidiaries to or for which Employee
renders service, (y) in connection with acquisitions and financings, and (z) to
the operations of the Company and its various Subsidiaries as an entity.
6. Reimbursement for Business Expenses; Fringe Benefits
6.1 The Company agrees that all reasonable expenses actually incurred
by Employee in the discharge and fulfillment of his duties for the Company, as
set forth in Section 2, will be reimbursed or paid by the Company upon written
substantiation therefor signed by Employee, itemizing said expenses and
containing all applicable vouchers or other substantiation consistent with
Company policy in effect from time to time.
6.2 The Company agrees that it will cause Employee to be insured under
such group life, medical, and insurance that the Company may maintain and keep
in force from time to time during the Term for the benefit of all the Company's
employees, subject to the terms, provisions and conditions of such insurance and
the agreements with underwriters relating to same. It is understood and agreed
that in its discretion the Company from time to time may terminate or modify any
or all of such insurance without obligation or liability to Employee.
7. Exclusivity; Non Solicitation; Disparaging Remarks. In exchange for the
consideration to be received by the Employee hereunder and under the
Offer Letter and in light of the high-level position that Employee will
occupy within the Company, the Employee agrees as follows:
7.1 During the Term, Employee agrees to devote his services and his
best energies and abilities, exclusively, to the business and activities of the
Company, including any Subsidiaries, and not engage or have an interest in or
perform services for any other business or entity of any kind or nature;
provided, however, that nothing herein shall prevent Employee from investing in
(but not rendering services to) other businesses which are not competitive in
any manner with the business then being conducted by the Company or any of its
Subsidiaries, or investing in (but not rendering services to) other businesses
(other than for charitable organizations, provided same does not interfere with
Employee's performance of his duties hereunder) which are competitive in any
manner with the business then being conducted by the Company, provided in the
latter instance, that (i) the shares of such business are listed and traded over
either a national securities exchange or in the over-the-counter market, and
(ii) the stock interest or potential stock interest (based on grants, options,
warrants or other arrangements or agreements then in existence) in any such
business which is so traded (together with any and all interest, actual and
potential, of all members of Employee's immediate family) is not a controlling
or substantial interest and specifically does not exceed one percent of the
issued and outstanding shares or a one percentage interest of or in such
business. Notwithstanding this
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Section 7.1, with the prior written approval of the Board of Directors of the
Company, Employee may participate as a director of one (1) other business
enterprise so long as such participation does not (i) involve a substantial
amount of Employee's time and (ii) impair the Employee's ability to perform his
duties under this Agreement.
7.2 During the Term and during the one year period following the end of
the Term for any reason whatsoever, Employee will not directly or indirectly,
recruit or otherwise solicit or induce or attempt to induce any employee of the
Company or any of its Subsidiaries to leave the employ of the Company or such
Subsidiary, or in any way interfere with the relationship between the Company
and any of its Subsidiaries and any employee thereof.
7.3 During the Term, and during the one year period following the end
of the Term, Employee agrees that he will not, directly or indirectly (whether
for compensation or without compensation), own, manage, operate, control,
participate in, consult with, render services for or in any manner engage in any
business in the Territory (as defined below) which is engaged in any business
then being conducted by the Company or any of its Subsidiaries during the Term.
For purposes of this covenant, the term Territory means all geographic areas in
which the Company and its Subsidiaries operate at the expiration of the Term or
the termination of this Agreement or, in the case of restrictions in place
during the Term, all geographic areas in which the Company and its Subsidiaries
are currently operating.
7.4 During the Term and thereafter, Employee agrees that he will not,
directly or indirectly, make any disparaging statements concerning Employer.
8. Uniqueness
8.1 Employee agrees that his services hereunder are special, unique and
extraordinary and that in the event of any material breach or attempted material
breach of this Agreement by Employee including, without limitation, the
provisions of Section 7, 9 and/or 10, the Company will sustain substantial
injury and damage, and Employee hereby consents and agrees that, in the event of
such breach hereof, the Company shall be entitled to any equitable remedies to
enforce the performance against Employee or any third party to prevent or in
respect of any such breach, in addition to such other rights or remedies
available to it.
9. Confidential Information; Return of Company Documents and Property
9.1 Employee acknowledges that his employment hereunder will
necessarily involve his understanding of and access to certain trade secrets and
confidential information pertaining to the businesses and activities of the
Company and its Subsidiaries. Accordingly, Employee agrees that during the
period of employment and at all times thereafter, he will not disclose to any
unauthorized third party any such trade secrets or confidential information and
will not (other than in connection with carrying out his duties) for any reason
remove or retain without the express consent of the Company any confidential
information or documents. For purposes of this Agreement, the term "confidential
information" shall include, without limitation, trade secrets, proprietary
information, company documents, records and other information which
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relates to the business or operations of the Company or any of its Subsidiaries
or affiliates. The provisions of this section shall survive the termination, for
any reason, of this Agreement or the Employee's employment.
9.2 Upon termination of Employee's employment with the Company whether
by reason of the termination or expiration of this Agreement, the Employee shall
return to the Company (i) all documents within his possession, custody, or
control relating to the business and affairs of the Company, or its products or
customers; and (ii) all other Company property within his possession, custody,
or control including, but not limited to, credit cards issued to him by the
Company, office keys or card keys, office passes or badges, office equipment,
telephones, supplies, facsimile machines, copiers, computers and peripheral
equipment, answering machines, or any other property or equipment furnished to
him or paid for by the Company. The Employee hereby authorizes the Company to
withhold payment of any amount payable by the Company to the Employee until the
Employee shall have returned all material documents and property in accordance
with this Section.
10. Inventions; Creations
10.1 All right, title and interest of every kind and nature whatsoever
in and to inventions, patents, trademarks, copyrights, films, scripts, ideas,
creations, intellectual property and literary, intellectual and other properties
furnished to the Company or any of its Subsidiaries and/or used in connection
with any of the activities of the Company or any of its Subsidiaries, or with
which employee is connected or associated in connection with the performance of
his service, shall as between the parties hereto be, become and remain the sole
and exclusive property of the Company or any of its Subsidiaries, as the case
may be, for any and all purposes and uses whatsoever, regardless of whether the
same were invented, created, written, developed, furnished, produced or
disclosed by Employee or by any other party, and Employee shall have no right,
title of interest of any kind or nature therein or thereto, or in any results
and proceeds therefrom. Employee agrees during and after the term hereof to
execute any and all documents which the Company may deem necessary and
appropriate to effectuate the provisions of this Section 10.1 and, further, that
the provisions of this Section shall survive the termination, for any reason, of
this Agreement or Employee's employment.
11. Death; Permanent Incapacity
11.1 The death of the Employee shall result in the immediate
termination of this Agreement.
11.2 In the event Employee suffers a disability which prevents him from
performing his services hereunder (herein called "Disability"), and in the event
such Disability continues for longer than 90 consecutive days or 120 days in any
12-month period, Employee shall be deemed to have suffered a Permanent
Incapacity, in which event the Company shall have the right to terminate this
Agreement upon not less than fifteen days' notice to Employee, and this
Agreement shall terminate on the date set forth therefor in said notice.
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11.3 Notwithstanding anything to the contrary expressed or implied in
this Agreement, except as required by applicable law, the Company (and its
affiliates and Subsidiaries) shall not be obligated to make any payments to
Employee or on his behalf of whatever kind or nature by reason of the Employee's
cessation of employment as described in Sections 11.1 and 11.2 above other than
(i) such amounts, if any, of his Base Salary as shall have accrued and remained
unpaid as of the date of said cessation, (ii) a pro rata portion of any
incentive target bonus payable with respect to the fiscal year during which such
cessation of employment occurred if Employee's relevant performance targets for
such fiscal year are achieved (such pro rata bonus to be payable within thirty
(30) days after the close of such fiscal year) and (iii) such other amounts, if
any, which may be then otherwise payable to Employee pursuant to the terms of
the Company's benefits plans or pursuant to Section 6.1 above.
12. Termination
12.1 In addition to termination pursuant to Section 11, Employee's
employment hereunder may be terminated for "cause." "Cause" for purposes of this
Agreement shall mean the following:
(i) chronic use of alcohol or drugs materially affecting
Employee's performance,
(ii) conviction of, or plea of nolo contendere to, a felony or
crime involving moral turpitude,
(iii) failure to comply within a period of ten business days with a
reasonable directive of the Employee's direct supervisor
and/or the Chief Executive Officer of the Company relating to
Employee's duties or Employee's performance and consistent
with Employee's position, after written notice that such
failure will be deemed to be "cause," to the extent such
failure can be cured within ten business days and if not so
curable, fails to commence curing during said ten-day period
and diligently pursue the curing of same until cured,
(iv) gross neglect or gross misconduct of Employee in carrying out
his duties under this Agreement, resulting, in either case, in
material economic harm to the Company, unless Employee
believed in good faith that such act or non-act was in the
best interests of the company,
(v) fraud on or misappropriation of corporate assets or corporate
opportunity, and
(vi) acts of dishonesty or breach of fiduciary obligation to the
Company or violation of any Company rule, regulation,
procedure or policy, including any breach of this Employment
Agreement, after written notice of such act, breach or
violation and failure to cure within ten business days.
12.2 In the event (i) the Company terminates this Agreement and
Employee's employment other than for "cause," and other than for death or
disability, (ii) the Company fails
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to renew the Agreement pursuant to Section 4.2 other than for "cause," and other
than for death or disability or (iii) the Employee terminates this Agreement for
Good Reason (as defined below), the Company shall (a) pay to Employee, as
severance pay or liquidated damages or both, monthly payments at the rate per
annum of his Base Salary at the time of such termination for a period from the
date of such termination to the date which is twelve (12) months after such
termination plus a pro rata portion of any incentive target bonus payable with
respect to the fiscal year during which such termination occurred if Employee's
relevant performance targets for such fiscal year are achieved (such pro rata
bonus to be payable within thirty (30) days after the close of such fiscal year)
and (b) continue to provide the Employee with life insurance and medical and
health insurance coverage at levels comparable to those in effect prior to such
termination for a period from the date of such termination to the earlier to
occur of (x) the date which is twelve (12) months after such termination and (y)
the date upon which the Employee becomes eligible to be covered for similar
benefits through his employment with another employer. For purposes of this
Agreement, Good Reason means (1) the Company shall have materially diminished
the Employee's duties, responsibility or authority without his consent, (2) the
Employee's title shall have been changed without his consent, (3) the Employee's
Base Salary shall have been reduced without his consent or (4) the Company shall
relocate to a location more than twenty-five miles away from its existing site
without the Employee's consent and, in each such case, such material diminution,
change, reduction or relocation shall continue unremedied for a period of
fifteen (15) days after written notice thereof to the Company.
13. Vacation
13.1 Employee shall be entitled to a vacation of four (4) weeks
duration in the aggregate during each year of the Term at times reasonably
agreeable to both Employee and the Company, it being understood that any portion
of such vacation not taken in such year shall not be available to be taken
during any other year.
14. Insurance
14.1 In addition to insurance referenced in Section 6.2, Employee
agrees that the Company or any Subsidiary may apply for and secure and/or own
and/or be the beneficiary of insurance on the Employee's life or disability
insurance (in each instance in amounts determined by the Company), and Employee
agrees to cooperate fully in the applying and securing of same, including the
submission to various physical and other examinations and the answering of
questions and furnishing of information as may be required by various insurance
carriers. However, nothing contained herein shall require the Company to obtain
any such life or disability insurance.
15. Miscellaneous
15.1 The Company shall have the right to assign this Agreement and to
delegate all duties and obligations hereunder to any successor, affiliated or
parent company or to any person, firm or corporation which acquires the Company
or substantially all of its assets, or with or into which the Company may
consolidate or merge. This Agreement shall be binding upon and inure
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to the benefit of the permitted successors and assigns of the Company. Employee
agrees that this Agreement is personal to him and may not be assigned by him.
15.2 This Agreement is being delivered in the State of New Jersey and
shall be construed and enforced in accordance with the laws of such State
applicable to contracts made and fully to be performed therein, and without any
reference to any rules of conflicts of laws.
15.3 Except as may herein otherwise be provided, all notices, requests,
demands and other communications hereunder shall be in writing and shall be
deemed to have been duly given if delivered personally or if mailed, first class
postage prepaid, registered or certified mail, return receipt requested, of if
sent by telecopier or overnight express delivery service, (a) to Employee at his
address set forth on the facing page hereof or at such other address as Employee
may have notified the Company sent by registered or certified mail, return
receipt requested, or by telecopier or overnight express delivery service, or
(b) if to the Company, at its address set forth on the facing page hereof,
Attention: Chief Executive Officer, or at such other address as the Company may
have notified Employee in writing sent by registered or certified mail, return
receipt requested, or by telecopier or overnight express delivery service.
Notice shall be deemed given (i) upon personal delivery, or (ii) on the second
business day immediately succeeding the posting of same, prepaid, in the U.S.
mail, (iii) on the date sent by telecopy if the addressee has compatible
receiving equipment and provided the transmittal is made on a business day
during the hours of 9:00 A.M. to 6:00 P.M. of the receiving party and if sent on
other times, on the immediately succeeding business day, or (iv) on the first
business day immediately succeeding delivery to the express overnight carrier
for the next business day delivery.
15.4 This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Each party shall deliver
such further instruments and take such further action as may be reasonably
requested by the other in order to carry out the provisions and purposes of this
Agreement. This Agreement together with the Offer Letter represents the entire
understanding of the parties with reference to the transaction set forth herein,
supercedes any prior agreement or understanding between the parties with respect
to the employment of the Employee by the Company and the rights and obligations
of the Employee and the Company relating thereto, and neither this Agreement nor
any provision thereof may be modified, discharged or terminated except by an
agreement in writing signed by the party against whom the enforcement of any
waiver, change, discharge or termination is sought. Any waiver by either party
of a breach of any provision of this Agreement must be in writing and no waiver
of a particular breach shall operate as or be construed as a waiver of any
subsequent breach thereof. If any covenant in this Agreement should be deemed to
be invalid, illegal or unenforceable because its scope is considered excessive
or for any similar reason, such covenant shall be modified so that the scope of
the covenant is reduced only to the minimum extent necessary to render the
modified covenant valid, legal or enforceable.
15.5 "Subsidiaries" or "Subsidiary" shall include and mean any
corporation, partnership or other entity 50% or more of the then issued and
outstanding voting stock is owned directly or indirectly by the Company in the
instance of a Corporation, and 50% or more of the
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interest in capital or in profits is owned directly or indirectly by the Company
in the instance of a partnership and/or other entity, or any corporation,
partnership, venture or other entity, the business of which is managed by the
Company or any of its Subsidiaries.
15.6 Employee acknowledges that he fully understands the scope and
meaning of the restrictive covenants contained in this Agreement and agrees that
such provisions are reasonable in light of the circumstances and are necessary
to protect Employer's legitimate interests.
15.7 The Employee and the Company agree that any claim or dispute that
may arise between them relating to this Agreement or the termination of the
Employee's employment with the Company (including any claim of constructive
termination) shall be determined exclusively by final and binding arbitration.
The arbitration proceeding will be conducted at a place selected by the Company
and before a single arbitrator under the National Rules for the Resolution of
Employment Disputes of the American Arbitration Association. The demand for
arbitration must be submitted within one year of the date that the Employee is
advised of his or her termination or the date that the Employee advises Company
of his or her decision to resign from employment; provided, however, that no
demand for arbitration may be made until thirty (30) days after a written
notice, stating with particularity the nature of the claim or dispute, has first
been forwarded by certified mail to the opposing party. The arbitration
proceeding shall be private and all information disclosed in the course of the
arbitration, as well as the arbitration award, shall be treated as confidential
by the parties. The award of the arbitrator shall be final and binding upon the
Employee and the Company and judgment upon the award rendered may be entered in
any court having jurisdiction. Each of the parties hereto expressly waives any
right to trial by jury. The costs of the arbitrator will be borne equally by the
parties, except that each party will pay its own attorney's fees and costs.
The claims or disputes that are subject to this arbitration provision include,
but are not limited to, any claim of discriminatory discharge, retaliatory
discharge or wrongful discharge under any state, federal or foreign statute,
breach of contract, lost wages, emotional distress, claims under Title VII of
the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Age
Discrimination in Employment Act, as amended, the Americans with Disabilities
Act, Employee Retirement Income Security of 1974, as amended, the Family and
Medical Leave Act, the Equal Pay Act of 1963, claims of unjustified dismissal
(Law 80 of May 30, 1976), discrimination on account of sex, religion, race, age,
political ideas, social condition or origin, national origin, disability or any
other reason, any common law claims, including, but not limited to, claims for
wrongful discharge, public policy claims, claims for breach of an express or
implied contract, claims for breach of an implied covenant of good faith and
fair dealing, intentional and/or negligent infliction of emotional distress,
defamation or damage to name or reputation, invasion of privacy, and tortious
interference with contract or prospective economic advantage. By agreeing to
submit these claims to arbitration, the Employee is giving up any right to a
jury trial or court trial with regard to these claims or disputes.
Nothing in this section concerning arbitration shall prevent the Company from
seeking equitable remedies in court for purposes of enforcing the performance
of, or enjoining the breach of, any provisions of Sections 7, 9 or 10 (and in
such event, Employee shall be entitled to bring any
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counterclaims in relation to such equitable remedy in the same court.) For this
limited purpose, the Employee hereby agrees to submit to personal jurisdiction
in any court in the state in which the Employee was last employed by Company.
IN WITNESS WHEREOF, the parties hereto have executed and have caused
this Agreement to be executed as of the day and year first above written.
CENTENNIAL COMMUNICATIONS CORP.
/s/ XXXXXXX X. SMALL
------------------------------
Name: Xxxxxxx X. Small
Title: Chief Executive Officer
XXXXXX XXXXXXXXXXX
/s/ XXXXXX XXXXXXXXXXX
------------------------------
Xxxxxx Xxxxxxxxxxx
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EXHIBIT 1
OFFER LETTER
July 25, 2002
Mr. Xxx Xxxxxxxxxxx
000 Xxxxxxx Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxx 00000
Dear Xxx,
I am pleased to offer you the position of Executive Vice President & Chief
Financial Officer of Centennial Communications Corp., reporting to me, based at
our corporate offices in Wall, New Jersey. Your compensation would be a base
salary of US$275,000 per annum, with an incentive award target of US$200,000.
(The company fiscal year ends on May 31, 2003. Your incentive award payout will
be calculated as if you worked here for the entire fiscal year.) You will
receive a signing bonus of US$100,000. In addition, we would grant you 375,000
shares under options upon board approval.
The following benefits would be extended to you:
- Four weeks vacation
- Participation in 401K Plan
- Medical benefits for you and your family with all preconditions and
waiting period waived
- Paid life insurance, annual executive
physical and financial planning services
- A temporary living allowance of up to $2,500.00 per month for
36 months.
Xxx, as you have seen, Centennial is a dynamic and growing company with
tremendous opportunity. I'm confident you will be a key player on my team
ensuring success and shareholder value for Centennial. I would like to suggest a
start date on or about August 19, 2002.
Xxxxxx Xxxxxx, senior vice president of human resources, is available to discuss
details of your benefits, compensation, temporary living arrangements, and the
blank copies of our employment contract and stock option agreement you
previously received by email. Nassry may be reached at (000) 000-0000.
This offer is contingent upon successful completion of a customary
pre-employment medical screening. Your acceptance of this offer does not
constitute an employment agreement.
Very truly yours,
/s/ XXXXXXX X. SMALL
--------------------
Xxxxxxx X. Small
Enclosures
cc: Xxxxxx Xxxxxx
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