EMPLOYMENT AGREEMENT (the “Agreement”) dated February 6, 2006 (the “Effective Time”) by and between BRUCE LAYMAN, an individual (the “Employee”), and AMERICAN TELECOM SERVICES, INC., a Delaware corporation (the “Company”).
EXHIBIT
10.3
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EMPLOYMENT AGREEMENT (the
“Agreement”)
dated February 6, 2006 (the
“Effective
Time”) by and between XXXXX
XXXXXX,
an individual
(the “Employee”), and
AMERICAN
TELECOM SERVICES, INC.,
a
Delaware
corporation (the
“Company”).
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______________________
A. The
Company is engaged in the business of sourcing, marketing, and distributing
telephony equipment bundled with broadband or prepaid communication
services.
B. The
Employee has been employed by the Company as its Chief Operating Officer and
Chief Financial Officer;
C. The
Company wishes to continue to employ the Employee as its Chief Operating Officer
and Chief Financial Officer, subject to the terms and conditions set forth
below.
1. Employment;
Term.
The
Company agrees to employ the Employee, and the Employee accepts employment
with
and agrees to be employed by the Company, in the positions of Chief Operating
Officer and Chief Financial Officer on the terms and subject to the conditions
contained herein. The Employee’s responsibilities, duties and authority shall be
those reasonably accorded to and expected of such positions including those
established from time to time by the Company’s Board of Directors, to whom the
Employee will report. The Employee shall devote substantially all of his working
time, attention, expertise, skill, abilities, energies and efforts to the
business of the Company and to the discharge of such responsibilities and the
performance of such duties as so assigned or delegated to him. The Employee
shall comply with the Company’s policies and procedures as they may exist from
time to time. The Employee shall not, directly or indirectly, render any
services of a business, commercial, or professional nature to any other entity
or person in any way competitive with the Company, whether for compensation
or
otherwise. The Employee represents that the execution of this Agreement and
the
performance of the Employee’s duties under this Agreement do not conflict with
or result in a breach or a default under any agreement, contract or instrument
to which the Employee is a party or by which the Employee is bound. The Employee
may engage in charitable, civic or community activities provided that they
do
not interfere with the performance of the Employee’s duties hereunder or
otherwise violate any provisions of this Agreement.. The Term of this Agreement
shall commence as of the Effective Time and shall continue through December
31,
2007 unless terminated as provided herein (the “Term”).
2. Base
Salary.
In
consideration for the services to be rendered by the Employee to the Company
under this Agreement, the Company shall pay the Employee an annualized base
salary (the “Base Salary”) in substantially equal regular periodic payments in
accordance with the Company’s regular payroll process, less applicable
withholding deductions required or authorized by law. For the period ending
June
30, 2006, the Employee’s annualized Base Salary
shall
be
$125,000 per year. For the period beginning July 1, 2006, and ending December
31, 2007, Employee’s annualized Base Salary shall be $137,500 per
year.
The
Employee shall be responsible for all required taxes, whether Federal, state
or
local in nature, including but not limited to, income taxes, Social Security
taxes, Federal Unemployment Compensation Taxes, in each case, that are required
to be paid by him pursuant to any applicable law. The Company shall have the
right to withhold from the sums payable to the Employee hereunder (including
base salary and any bonus) such amounts, if any, as may be required by the
Internal Revenue Code of the United States or any other like statute that is,
or
may become, applicable to the provisions hereof.
3. Bonus
Payments.
The
Employee shall be eligible for Net Sales Bonus payments and Net Profits Bonus
payments as follows:
(a) Net
Sales Bonus.
The
Employee shall be eligible for bonus payments based on the “Company’s Net
Sales”, defined as the Company’s revenues collected during the relevant bonus
period, less allowances granted to retailers, markdowns, discounts, commissions,
reserves for service outages, customer holdbacks, and expenses, (the “Net Sales
Bonus”), as described below.
(i) Calculation
and Timing of Payments.
The Net
Sales Bonus shall be calculated and payable as follows:
(A) Subject
to the limitation in Section 3(c) below, one percent of the amount by which
the
Company’s Net Sales during the fiscal year ending June 30, 2006, exceed
$5,000,000, payable within ten (10) days after the first public availability
of
the Company’s audited financial statements for the fiscal year ending June 30,
2006;
(B) Subject
to the limitation in Section 3(c) below, one percent of the amount by which
the
Company’s Net Sales for the fiscal year ending June 30, 2007, exceed the
Company’s Net Sales during the fiscal year ending June 30, 2006 payable within
ten (10) days after the first public availability of the Company’s audited
financial statements for the fiscal year ending June 30, 2007; and
(C) Subject
to the limitation in Section 3(c) below, one percent of the amount by which
the
Company’s Net Sales for the six-month period ending December 31, 2007, exceed
the Company’s Net Sales during the six-month period ending June 30, 2007 payable
within ten (10) days after the first public availability of Company’s audited
financial statements for the six month period ending December 31,
2007.
(D) The
Net
Sales Bonus shall in no event exceed seventy five percent (75%) of (x) the
Employee’s then current annual Base Salary or, (y) in the case of the six-month
period ending December 31, 2007, the Base Salary during such
period.
(ii) Termination
for Cause.
If this
Agreement is terminated for cause by the Company pursuant to Section 10(a)
of
this Agreement, the Employee shall be ineligible for any Net Sales Bonus
following the date of termination of this Agreement; provided, however, if
this
Agreement is still in effect on the last day of the fiscal year or other
financial reporting
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period
on
which a Net Sales Bonus payment is based, the Employee shall remain eligible
for
a Net Sales Bonus payment for such period in accordance with this Section
3.
(iii) Termination
Without Cause Or For Good Reason.
If this
Agreement is terminated without cause by the Company, by reason of death or
disability as provided in Section 10 hereof, or for Good Reason by the Employee,
the Employee shall be eligible for a pro rated Net Sales Bonus based on the
data
from the Company’s audited financial statements for the period ending on the
last completed quarter of the financial reporting period on which a Net Sales
Bonus is based; it being understood for purposes of Sections 3(a)(i)a and
3(a)(i)b that the sales figures shall be annualized and the resulting Net Sales
Bonus shall be equal to the product of (x) the Net Sales Bonus determined on
such annualized sales figures and (y) a fraction, the numerator of which shall
be the number of quarters completed in the financial reporting period prior
to
the termination and the denominator of which shall be four; it being further
understood that for purposes of Section 3(a)(i)c, if the termination occurs
after September 30, 2007 but prior to December 31, 2007, the sales figures
through the quarter ending September 30, 2007 shall be multiplied by two and
the
resulting Net Sales Bonus shall be equal to the quotient of (x) the Net Sales
Bonus determined on the basis of such sales figures and (y) two. The pro rated
bonus hereunder shall be payable within ten days of the termination date of
this
Agreement.
For
purposes of this Agreement, “Good
Reason”
shall
mean (i) the Company’s material breach of this Agreement and its failure to cure
such breach within thirty (30) days after written notice thereof from the
Employee to the Company.
(iv) Termination
by the Employee.
If this
Agreement is terminated by the Employee for any reason (other than for Good
Reason), the Employee shall be ineligible for any Net Sales Bonus following
the
date of termination, provided, however, if this Agreement is still in effect
on
the last day of the fiscal year or other financial reporting period on which
a
Net Sales Bonus is based, the Employee shall remain eligible for a Net Sales
Bonus payment for such period in accordance with this Section 3.
(b) Net
Profits Bonus.
During
the Term, the Employee shall receive a bonus based on the “Company’s Net
Profits,” defined as the Company’s net income, after taxes, as determined in
accordance with Generally Accepted Accounting Principles (GAAP), (the “Net
Profits Bonus”), as described below.
(i) Calculation
and Timing of Payments.
The Net
Profits Bonus shall be calculated and payable as follows:
(A) Subject
to the limitation in Section 3(c) below, one percent of the Company’s Net
Profits for the fiscal year ending June 30, 2006 payable within ten (10) days
after the first public availability of the Company’s audited financial
statements for the fiscal year ending June 30, 2006;
(B) Subject
to the limitation in Section 3(c) below, one percent of the Company’s Net
Profits for the fiscal year ending June 30, 2007 payable within ten (10) days
after the first public availability of the Company’s audited financial
statements for the fiscal year ending June 30, 2007; and
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(C) Subject
to the limitation in Section 3(c) below, one percent of the Company’s Net
Profits for the six-month period ending December 31, 2007 payable within ten
(10) days after the first public availability of Company’s audited financial
statements for the six month period ending December 31, 2007.
(ii) Termination
for Cause.
If this
Agreement is terminated for cause by the Company pursuant to Section 10(a)
of
this Agreement, Employee shall be ineligible for any Net Profits Bonus payment
following the date of termination, provided, however, if this Agreement is
still
in effect on the last day of the fiscal year or other financial reporting period
on which a Net Profits Bonus is based, the Employee shall remain eligible for
a
Net Profits Bonus payment for such period in accordance with this Section
3.
(iii) Termination
Without Cause Or For Good Reason.
If this
Agreement is terminated without cause by the Company, by reason of death or
disability as provided in Section 10 hereof, or for Good Reason by the Employee,
the Employee shall be eligible for a pro rated Net Profits Bonus based on the
data from the Company’s audited financial statements for the period ending on
the last completed quarter of the financial reporting period on which a Net
Profits Bonus is based; it being understood for purposes of Sections 3(b)(i)a
and 3(b)(i)b the net profits shall be annualized and the resulting Net Profits
Bonus payment shall be equal to the product of (x) the Net Profits Bonus
determined on such annualized net profits and (y) a fraction, the numerator
of
which shall be the number of quarters completed in the financial reporting
period prior to the termination and the denominator of which shall be four;
it
being further understood that for purposes of Section 3(b)(i)(c), if the
termination occurs after September 30, 2007 but prior to December 31, 2007,
the
net profits through the quarter ending September 30, 2007 shall be multiplied
by
two and the resulting Net Profits Bonus shall be equal to the quotient of (x)
the Net Profits Bonus determined on the basis of such net profits and (y) two.
The pro rated bonus hereunder shall be payable within ten days of the
termination date of this Agreement.
(iv) Termination
by the Employee.
If this
Agreement is terminated by the Employee for any reason (other than for Good
Reason), the Employee shall be ineligible for any Net Profits Bonus payment
following the date of termination, provided, however, if this Agreement is
still
in effect on the last day of the fiscal year or other financial reporting period
on which a Net Profits Bonus is based, the Employee shall remain eligible for
a
Net Profits Bonus payment for such period in accordance with this Section
3.
(c) Maximum
Amount Of Bonus Payments.
The
aggregate of the Employee’s Net Sales Bonus and Net Profits Bonus will in no
event exceed seventy five 75% of the Employee’s Base Salary during any bonus
period for which the Net Sales Bonus and Net Profits Bonus are
paid.
4. Stock
Options.
Subject
to the terms and conditions of the Company’s 2005 Stock Option Plan (the “Plan”)
and a Stock Option Agreement to be executed by the Company and the Employee
(the
“Option Agreement”), the Employee shall receive a grant of 50,000 stock options
under the Plan (the “Options”) as of the Effective Time. The Options shall be
subject to vesting as set forth in the Option Agreement which shall include,
without limitation, accelerated vesting in the event of a termination of this
Agreement without cause by the Company, for Good Reason by the Employee and
in
the event of a Change in Control.
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“Change
in Control”
shall
mean (w) any person shall after the date hereof become the beneficial owner,
directly or indirectly, of securities of the Company representing 50% or more
of
the voting or economic interest of all then outstanding securities of the
Company, (x) the consummation of any corporate transaction, including a
consolidation or merger, of the Company in which the Company is not the
continuing or surviving entity, other than a consolidation or merger of the
Company in which the holders of the Company’s equity interest immediately prior
to the consolidation or merger shall, upon consummation of the consolidation
or
merger, own at least 50% of the equity interests of the surviving entity after
such consolidation or merger, (y) persons who, as of the Effective Time,
represent all the members of the board of directors (the “Board”) of the Company
cease for any reason to constitute at least a majority of the members of the
Board, or (z) the consummation of any sale (in any single transaction or series
of related transactions) of all or substantially all of the assets or business
of the Company.
5. Performance
Accelerated Restricted Stock (PARS).
Subject
to the terms and conditions of the Company’s 2005 Stock Option Plan (the “Plan”)
and a Performance Accelerated Restricted Stock Option Agreement to be signed
by
the Company and the Employee (“PARS Agreement”), the Employee shall receive a
grant of 25,000 shares of Performance Accelerated Restricted Stock (“PARS”)
under the Plan. The PARS shall be subject to vesting as set forth in the PARS
Agreement which shall include, without limitation, accelerated vesting in the
event of a termination of this Agreement without cause by the Company, for
Good
Reason by the Employee and in the event of a Change in Control.
6. Employment
Benefits.
Subject
to any applicable eligibility requirements, the Employee shall be entitled
to
receive benefits pursuant to the terms and conditions of the employee benefit
plans then in effect for other executive employees of the Company. For purposes
of this Section 6, such benefits shall include (i) coverage under the Company’s
medical/health care plan for the Employee and the Employee’s immediate family
members and (ii) life insurance provided by a Company-designated carrier in
an
amount not to exceed $500,000 (collectively, the “Benefits”).
7. Paid
Vacation.
The
Employee shall accrue prorated vacation at a rate of two weeks per year during
fiscal year 2006 and for the first six months of fiscal year 2007. Thereafter,
the Employee shall accrue prorated vacation at a rate of three weeks per year.
Any earned but unused vacation shall be paid to the Employee at the time of
the
termination or expiration of this Agreement other than for cause. The Employee
shall provide sufficient information to the Company on an ongoing basis to
enable it to maintain an accurate record of vacation days earned and vacation
days taken.
8. Business
Expense Reimbursement.
The
Employee shall be reimbursed for all out-of-pocket expenses reasonably incurred
by him in the performance of his duties under this Agreement, provided that
such
expenses are properly documented and itemized and incurred in amounts and in
a
manner consistent with any standard business expense reimbursement policies.
The
Employee shall be given an automobile allowance of $500.00 per month, payable
monthly.
9. Reserved.
10. Termination.
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(a) Termination
for Cause by Company.
This
Agreement may be terminated for cause at any time by action of the Company’s
Board of Directors. Such termination shall be effective upon the Company’s
delivery to the Employee of written notice of such termination. For the purpose
of this Agreement, a termination shall be for “cause” in the event
of:
(i) any
material breach of business or professional ethics by the Employee;
(ii) any
act
or omission of the Employee that materially injures the business or professional
reputation of the Company;
(iii) the
Employee’s conviction of, or his pleading of nolo contendere to, a felony or any
crime involving fraud, dishonesty, or moral turpitude;
(iv) the
Employee’s dishonesty in the conduct of the business affairs of the Company or
in dealing with the finances or property of the Company;
(v) any
material failure by the Employee to comply with any of the terms of this
Agreement or any reasonable request of the Board of Directors of the Company;
or
(vi) any
material failure of the Employee to faithfully to perform his services hereunder
in a timely and competent manner.
Upon
termination of this Agreement for cause, except as otherwise provided herein,
all of the Employee’s rights to compensation and benefits shall immediately
terminate to the maximum extent permitted by applicable law, provided that
the
Employee shall receive any portion of the Base Salary and other benefits under
the Company’s benefit plans that have accrued through the date of termination
but has not previously been paid.
(b) Termination
Without Cause by Company Or For Good Reason By Employee.
This
Agreement may be terminated by the Company without cause at any time or for
Good
Reason by the Employee at any time. In the event of the Employee’s termination
of this Agreement without cause by the Company or for Good Reason by the
Employee, the Company’s obligations under this Agreement shall cease as of the
date of such termination. However, the Employee shall receive any unpaid portion
of any remaining Base Salary that would have accrued through the end of the
Term
had this Agreement not been so terminated which has not previously been paid
to
the Employee and shall be entitled to Benefits through the end of the Term
as if
this Agreement had not been so terminated, subject, in each case, to the
condition that the Employee executes a General Release Agreement in the form
prescribed by the Company in consideration for the payment to him by the Company
of such remaining Base Salary. The remaining Base Salary to be paid pursuant
to
this paragraph shall be in accordance with the Company’s regular payroll process
through the end of the Term (including any withholding) as if this Agreement
had
not been so terminated.
(c) Termination
for Death or Permanent Disability.
Except
as otherwise prohibited by law, the Employee’s employment under this Agreement
shall be terminated by the Employee’s death or permanent disability. For the
purpose of this Agreement, the term “permanent disability” shall mean a
disability resulting from physical or mental illness or bodily injury which,
in
the reasonable opinion of an independent physician paid for by the Company
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(which
shall specifically exclude Employee’s personal physician), prevents the Employee
from fulfilling the Employee’s essential duties hereunder with or without
reasonable accommodation for a period of ninety (90) days in any three hundred
sixty-five (365) day period. In the event that the Employee’s employment
hereunder is terminated upon the Employee’s death or permanent disability, all
of the Employee’s rights to compensation and employment benefits shall
immediately terminate to the maximum extent permitted by applicable law,
provided that the Employee shall, except as provided herein, receive such
portion of the Base Salary and other benefits under the Company’s benefit plans
that have accrued through the date of termination but have not previously been
paid.
(d) Termination
by Employee.
If the
Employee terminates his employment for any reason (other than for Good Reason),
all of the Employee’s rights to compensation and employment benefits shall
immediately terminate to the maximum extent permitted by applicable law,
provided that the Employee shall receive such portion of the Base Salary and
other benefits under the Company’s benefit plans that have accrued through the
date of termination but have not previously been paid and bonuses payable in
accordance with Section 3 hereof.
(e) Cooperation
with Company after Termination.
Following any termination of this Agreement, unless the Company has materially
breached the terms thereof, and for a reasonable time thereafter, the Employee
shall cooperate fully with the Company in all matters relating to the winding
up
of the Employee’s pending work on behalf of Company and the orderly transfer of
any such pending work to other employees of the Company as may be designated
by
the Company. The Company shall reimburse the Employee for out-of-pocket costs
of
the Employee in connection with the Employee’s obligation under this Section
10(e) and pay the Employee a pro-rated portion of the Employee’s Base Salary for
each full business day the Employee is reasonably required to work to satisfy
such obligations.
11. Covenant
Not to Compete / Solicit.
The
Employee hereby provides the Company with the following covenants:
(a) The
Employee recognizes and acknowledges that the Proprietary Information (as
hereinafter defined) is a valuable, special and unique asset of the Company.
As
a result, both during the Term and thereafter, the Employee shall not, without
the prior written consent of the Company, for any reason, either directly or
indirectly, divulge to any third-party or use for his own benefit, or for any
purpose other than the exclusive benefit of the Company, any confidential,
proprietary, business and technical information or trade secrets of any of
the
Company or of any subsidiary or affiliate thereof (the “Proprietary
Information”)
revealed, obtained or developed in the course of his employment with the
Company. Proprietary Information shall include, but shall not be limited to:
technical information, including research design, results, techniques and
processes; computer codes or instructions (including source and object code
listings, program logic algorithms, subroutines, modules or other subparts
of
computer programs and related documentation, including program notation);
computer processing systems and techniques; concepts, layouts, flowcharts and
specifications; know-how; any associated user or service manuals or other like
textual materials (including any other data and materials used in performing
the
Employee’s duties); all computer inputs and outputs (regardless of the media on
which stored or located); hardware and software configurations, designs,
architecture and interfaces; technical management information, including project
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proposals,
research plans, status reports, performance objectives and criteria, and
analyses of areas for business development; and business information, including
project, financial, accounting and personnel information, business strategies,
plans and forecasts, customer and supplier lists, customer and supplier
information and sales and marketing plans, efforts, information and data. In
addition, “Proprietary Information” shall include all information and materials
received from a third party by the Company or the Employee which third party
is
subject to an obligation of confidentiality and/or non-disclosure. Nothing
contained herein shall restrict the Employee’s ability to make such disclosures
during the Term as may be necessary to the effective and efficient discharge
of
the duties required by the position or as such disclosures may be required
by
law, as determined by counsel to the Company. Furthermore, nothing contained
herein shall restrict the Employee from divulging or using for his own benefit
or for any other purpose any Proprietary Information that is (a) readily
available to the general public so long as such information did not become
available to the general public as a direct or indirect result of the Employee’s
breach of this Section, or (b) was known to the Employee prior to its disclosure
to him by the Company. Failure by the Company to xxxx any of the Proprietary
Information as confidential or proprietary shall not affect its status as
Proprietary Information under the terms of this Agreement.
(b) Non-competition.
Commencing as of the Effective Time and continuing for a period of one year
following the termination of this Agreement by the Company for cause or by
the
Employee for any reason (other than for Good Reason) or expiration of the Term
(the “Restricted Period”), the Employee shall not, anywhere in the United States
or Canada, directly or indirectly, either alone or as a shareholder, partner,
associate, consultant, owner, agent, creditor, or co-venturer of any other
person or entity, or in any other capacity, directly or indirectly, engage
in
the business of sourcing, marketing, or distributing consumer telephony
equipment bundled with broadband/or prepaid communication services; provided
that nothing herein shall prohibit the Employee from being an owner of not
more
than 5% of the outstanding stock of any class of a corporation which is publicly
traded, so long as the Employee does not actively participate in the business
of
such corporation. The Employee further agrees that he shall not directly or
indirectly engage in any business at any time under a trademark or trade name
that is confusingly similar to or may connote an association with any trademark
or trade name of the Company.
(c) Non-Interference
with Business Relations. During the Restricted Period, the Employee shall not,
directly or indirectly, solicit, induce or attempt to solicit or induce any
customer, supplier, licensee or other business relation of the Company to cease
doing business with the Company, or in any way interfere with any such business
relation of the Company.
(d) Solicitation
of Employees. During the Restricted Period, the Employee shall not, directly
or
indirectly, either alone or as a shareholder, partner, consultant, adviser,
owner, associate, agent, creditor or co-venturer of any other person or entity,
or in any other capacity, solicit, hire, attempt to solicit or hire, or
participate in any attempt to solicit or hire any person who is an employee
of
Company or who was an employee of Company within the preceding twelve
months.
(e) Scope.
The parties agree that the duration, scope, and area restrictions set forth
in
this Section 11 are reasonable. If, at the time of enforcement of this Section
11, a court shall hold that the duration, scope or area restrictions stated
herein are unreasonable under
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circumstances
then existing, the parties agree that the maximum duration, scope or area
reasonable under such circumstances shall be substituted for the stated
duration, scope or area.
(f) Remedies.
The Employee agrees that if he shall commit or threaten to commit a breach
of
any of the covenants and agreements contained in this Section 11, then the
Company shall have the right to seek and obtain, without posting any bond or
security, all appropriate injunctive and other equitable remedies therefore,
in
addition to any other rights and remedies that may be available at law, it
being
acknowledged and agreed that any such breach would cause irreparable injury
to
the Company and that money damages would not provide an adequate remedy
therefor.
12. Notices.
All
notices and other communications given or made pursuant to this Agreement shall
be in writing and shall be delivered personally or sent by first class
registered or certified mail, return receipt requested, documented overnight
delivery service or telefax to the appropriate address or number as set forth
below:
(a) if
to the
Company, to:
0000
Xxxx
Xxxx
Xxxx
xx
Xxxxxxxx, Xxxxxxxxxx 00000
(b) if
to
Employee, to:
0000
Xxxxxxx Xxxxx Xxxx
Xxxxxxxxxx,
Xxxxxxx 00000
or
to
such other persons or at such other addresses as shall be furnished by either
party by like notice to the other. Such notice or communication shall be deemed
to have been given or made (a) if personally delivered, on the date so
delivered, (b) if sent by registered or certified mail, on the date of receipt
or the date delivery is refused, (c) if sent by documented overnight delivery
service, on the next business day following delivery to the courier service,
or
(d) if sent by facsimile transmission, on the date of transmission if sent
during normal business hours of the recipient or, if not, then on the next
business day.
13. Resolution
of Disputes; Equitable Remedies.
(a) Any
controversy, dispute or claim arising out of, or relating to, this Agreement
or
the breach or alleged breach hereof, or affecting this Agreement in any way,
shall be settled by final and binding arbitration in New York, New York in
accordance with the applicable provisions of the American Arbitration
Association (the “AAA”) in effect at the time of filing of the demand for
arbitration. The arbitration shall be conducted by one arbitrator who shall
be
selected by the mutual agreement of the parties or, failing such agreement,
by
the AAA. The parties will cooperate with the AAA and with one another in
selecting an arbitrator from the AAA’s panel of neutrals and in scheduling the
arbitration proceedings. The parties will participate in the arbitration in
good
faith and will share equally in its costs. The parties shall be entitled to
such
discovery as the parties agree or as otherwise ordered by the arbitrator. By
further agreement of the parties or direction of the arbitrator, proceedings
which, in the judgment of the arbitrator, are not dependent on the credibility
of a testifying witness may be held other than in person, such as via telephone
conference. The arbitrator shall render a written reasoned
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award
and
may award all forms of relief that would otherwise be available in court,
including injunctive relief. If judicial enforcement of the arbitrator’s award
is sought by either party, judgment may be entered upon such award in any court
of competent jurisdiction. By signing this Agreement, each party expressly
agrees to have all disputes, claims or controversies arising out of or relating
to this Agreement, decided by neutral arbitration, and gives up (i) any rights
the party might possess to have those matters litigated in a court or jury
trial, and (ii) judicial rights to discovery and appeal except to the extent
that they are specifically provided for under this Agreement. If any party
refuses to submit to arbitration after agreeing to this provision, the party
may
be compelled to arbitrate under federal or state law.
14. Binding
Agreement.
This
Agreement shall be binding upon and shall inure to the benefit of the parties,
their heirs, successors, and personal representatives; provided, however, that
the Employee may not assign any of his rights, obligations or duties
hereunder.
15. Waivers
and Amendments.
This
Agreement may be amended, modified or supplemented only by a written instrument
executed by the parties hereto. Each of the parties may, only by an instrument
in writing, extend the time for the performance of any of the obligations of
the
other or waive any compliance with any of the covenants or performance of any
of
the obligations of the other contained in this Agreement. The waiver by either
party hereto of a breach of any provision of this Agreement shall not operate
or
be construed as a waiver of any subsequent breach. No delay on the part of
either party in exercising any right, power or privilege hereunder shall operate
as a waiver thereof; nor shall any waiver on the part of either party of any
such right, power or privilege, nor any single or partial exercise of any such
right, power or privilege, preclude any further exercise thereof or the exercise
of any other such right, power or privilege.
16. Interpretation.
(a) The
Section headings contained in this Agreement are solely for convenience of
reference and shall not affect the meaning or interpretation of this Agreement
or of any term or provision hereof.
(b) Each
party has reviewed and participated in drafting and revising this Agreement
and
the normal rule of construction that any ambiguity is to be resolved against
the
drafting party shall not be employed in the interpretation of this
Agreement.
17. Severability.
This
Agreement shall be deemed severable, and the invalidity or unenforceability
of
any term or provision hereof shall not affect the validity or enforceability
of
this Agreement or of any other term or provision hereof. If any provision of
this Agreement is held by a court of competent jurisdiction to be invalid,
void
or unenforceable, the remaining provisions shall, nevertheless, continue in
full
force and effect without being impaired or invalidated in any way.
18. Entire
Agreement.
This
Agreement, the Option Agreement and the PARS Agreement, represent the entire
agreement and understanding of the parties with reference to the matters forth
herein, and no representations, warranties, covenants or undertakings have
been
made in connection with this Agreement other than those expressly set forth
herein. This Agreement supersedes all prior negotiations, discussions,
correspondence, communications,
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understandings,
and agreements between the parties relating to the subject matter of this
Agreement and all prior drafts of this Agreement, all of which are merged into
this Agreement.
19. Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Delaware, without regard to the conflicts of law rules of such
state.
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AMERICAN
TELECOM SERVICES, INC.
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| |
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| By: | /s/ Xxxxx Xxxx | |
|
Name:
Xxxxx Xxxx
Title:
Chief Executive Officer
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||
|
EMPLOYEE:
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| |
|
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| By: | /s/ Xxxxx Xxxxxx | |
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Xxxxx
Xxxxxx
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