NextG Networks, Inc. SECOND AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit 10.6
NextG Networks, Inc.
SECOND AMENDED AND RESTATED
EXECUTIVE EMPLOYMENT AGREEMENT
EXECUTIVE EMPLOYMENT AGREEMENT
This Second Amended and Restated Executive Employment Agreement (this “Agreement”),
dated July 21, 2004 (the “Effective Date”), is executed by and between NextG Networks,
Inc., a Delaware corporation (collectively with its successors, the “Company”), and Xxxx X.
Xxxxxxx (the “Executive”). This Agreement amends and restates the Amended and Restated
Executive Employment Agreement, dated July 18, 2001, executed by and between the Company and the
Executive (the “Prior Agreement”). In this Agreement, the Executive and the Company are
each individually referred to as a “Party,” and are collectively referred to as the
“Parties.”
1. Employment Duties and Scope.
(a) Position and Duties. As of the Effective Date, the Executive will serve as the
Company’s Chief Executive Officer. As the Company’s Chief Executive Officer, the Executive will
render the business, management, and professional services that are consistent with the Executive’s
position with the Company and as reasonably assigned to the Executive by the Company’s Board of
Directors (the “Board”) and/or as are contemplated by the Company’s Bylaws. In this
Agreement, the actual time period of the Executive’s employment under this Agreement is referred to
as the “Employment Term.”
(b) Board Membership. During the Employment Term and without additional compensation,
the Executive will serve as a Company director and as Chairman of the Board, subject to any
required Board and/or stockholder approval and subject to any Board nomination rights that the
Executive may otherwise have pursuant to other agreements with the Company and/or others.
(c) Obligations. During the Employment Term, the Executive will perform the
Executive’s duties faithfully and to the best of the Executive’s ability, and the Executive will
devote the Executive’s full business time, efforts, and attention to the Company; provided that
nothing in this Section 1(c) will not be deemed to prohibit the Executive from serving as a
director of or a consultant to other persons, corporations, or businesses to the extent that such
service does not substantially interfere with the Executive’s duties and obligations under this
Agreement.
2. Employment Period.
(a) Term. The employment period will begin on the Effective Date and will continue
thereafter until the fourth anniversary of the Effective Date (the “Employment Period”),
unless terminated earlier pursuant to the provisions of this Agreement.
(b) Early Termination. Either the Company or the Executive may terminate the
Executive’s employment before the end of the Employment Period by giving the other party 30 days’
advance written termination notice. In any such case:
(i) Section 9(a)(i) will apply if the Company terminates the Executive’s employment before the
Employment Period expires for any reason other than death, Disability (as defined below), or Cause
(as defined below), or if the Executive terminates the Executive’s employment before the Employment
Period expires for Good Reason (as defined below).
(ii) Section 9(a)(ii) will apply if the Company terminates the Executive’s employment before
the end of the Employment Period for death, Disability, or Cause, or if the Executive terminates
the Executive’s employment before the Employment Period expires other than for Good Reason.
(iii) Subject to Section 9(a)(i), upon termination of the Executive’s employment with the
Company, the Executive’s rights under any applicable Company benefit plans will be determined under
the provisions of those plans.
(iv) Any written termination notice waiver will be valid only if such waiver is made in
writing and expressly refers to the written termination notice requirement contained in this
Section 2(b).
(c) Death. The Executive’s employment will terminate in the event of the Executive’s
death. The Company will have no obligation to pay or provide any compensation or benefits under
this Agreement on account of the Executive’s death, or for periods after the Executive’s death;
provided that the Company’s obligations under Section 9(a)(i) will not be interrupted as a result
of the Executive’s death. The Executive’s rights under any applicable Company benefit plans in the
event of the Executive’s death will be determined under the provisions of those plans.
(d) Cause. The Company may terminate the Executive’s employment for Cause by giving
the Executive 30 days’ advance written notice. For all purposes under this Agreement, the term
“Cause” means (i) any act or omission by the Executive that constitutes a material breach
by the Executive of any of the Executive’s obligations under this Agreement, the Executive’s
Restricted Stock Purchase Agreement, any confidentiality agreement, or any invention assignment and
proprietary information agreement, in each case, after written notice of such material breach and
if the Executive fails to cure such material breach within 30 calendar days after receiving such
notice; (ii) any material violation by the Executive of any law or regulation applicable to the
Company or any of the Company’s subsidiaries or affiliates, or the Executive’s conviction of, or
plea of nolo contendere to, a felony, or willful perpetration by the Executive of a common law
fraud; (iii) the Executive’s continued substantial violations of the Executive’s employment duties
after the Executive has received from the Company a written performance demand that specifically
sets forth the factual basis for the Company’s belief that the Executive has substantially violated
the Executive’s employment duties and if the Executive fails to cure such substantial violations
within 30 calendar days after receiving such written demand; (iv) subject to the proviso in Section
1(c) and to the second sentence of Section 8, commencement of employment with another employer
while the Executive is a Company employee and without the Board’s prior written consent; and (v)
the Executive’s willful and repeated failure to comply with lawful written direction from the
Board.
(e) Disability. The Company may terminate the Executive’s employment for Disability
by giving the Executive 30 days’ advance written notice. For all purposes under this
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Agreement, the term “Disability” means that the Executive, as of the time that notice
is given, has been unable to substantially perform the Executive’s duties under this Agreement for
a period of at least six consecutive months as the result of the Executive’s incapacity due to
physical or mental illness. If the Executive resumes the performance of substantially all of the
Executive’s duties under this Agreement before the Executive’s termination becomes effective
pursuant to this Section 2(e), then the termination notice will be deemed to have been
automatically revoked by the Company. No compensation or benefits will be paid or provided to the
Executive under this Agreement on account of termination for Disability, or for periods after the
date on which a Disability-based termination becomes effective. In case of Disability, the
Executive’s rights under any applicable Company benefit plans will be determined under the
provisions of those plans.
(f) Good Reason. The Executive’s employment with the Company will be deemed to have
been constructively terminated by the Company, and the Executive may consequently terminate the
Executive’s employment for Good Reason and become entitled to the benefits of Section 9(a)(i), if,
before the Employment Period expires, one or more of the following events occurs without the
Executive’s prior written consent:
(i) the Executive’s duties, position, or responsibilities are significantly reduced or
diminished relative to the Executive’s duties, position, or responsibilities as in effect
immediately before such reduction or diminution, or the Executive is removed from such position,
duties, and responsibilities, unless the Executive is provided with comparable duties, position,
and responsibilities;
(ii) any of the Executive’s facilities and perquisites (including office space and location)
are substantially reduced or diminished without good business reasons, as compared to those
available to the Executive immediately before such reduction or diminution;
(iii) the Executive’s Base Salary is reduced, as compared to the Executive’s Base Salary as in
effect immediately before such reduction;
(iv) a material reduction in the kind or level of employee benefits to which the Executive is
entitled as compared to those available immediately before such reduction with the result that the
Executive’s overall benefits package is significantly reduced, unless such material reduction
applies generally to all Company senior management;
(v) the relocation of the Executive’s office to an office located more than 50 miles from the
Executive’s current office or more than 50 miles from the Executive’s current residence;
(vi) the Company’s failure to cause any successor to assume this Agreement in its entirety;
(vii) any purported termination of the Executive’s employment if such termination is not for
Cause, due to Disability, or due to death, or for which the grounds relied upon are not valid; or
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(viii) any material breach by the Company of any material provision of this Agreement.
3. Principal Executive Office. The Executive’s services will be performed at the
Company’s principal executive offices in Milpitas, California; provided that the Executive may be
required to travel in connection with performing the Executive’s duties under this Agreement.
4. Compensation.
(a) Base Salary. During the Employment Period, the Company will pay the Executive a
base salary equal to an annual rate of at least $170,000 (such annual rate, as in effect from time
to time, the “Base Salary”). The Base Salary will be paid in periodic installments in
accordance with the Company’s regular payroll practices. The Company will review the Base Salary
at least annually as of the payroll payment date nearest each anniversary of the Effective Date
(beginning in 2005), and the Company will increase the Base Salary as the Board or the Company’s
compensation committee may approve.
(b) Bonus. Beginning with the Company’s 2005 fiscal year and for each subsequent
fiscal year during the Employment Period, the Executive will be eligible to receive an annual bonus
payable within 15 days of the end of the applicable fiscal year based upon certain financial
criteria (including revenue and profitability targets and other organizational milestones) to be
agreed upon by the Executive and the Board or the compensation committee. Within 30 days before
the end of each fiscal year during the Employment Period, the Executive will prepare and submit for
Board or compensation committee review and approval a management bonus program for the succeeding
fiscal year during the Employment Period that will include the financial criteria upon which the
Executive’s bonus opportunity will be based. For any particular fiscal year during the Employment
Period, the Board or the compensation committee will determine the actual amount of any bonus
payable to the Executive under this Agreement.
5. Employee Benefits. During the Employment Period, the Executive will be entitled to
participate in the Company’s employee benefit plans or programs, if any, to the extent that the
Executive’s position, tenure, salary, age, health, and other qualifications make him eligible to
participate, subject to the rules and regulations applicable to such plans or programs. The
Company reserves the right to cancel or change, at any time, the Company benefit plans and programs
offered to the Company’s employees.
6. Vacation. The Executive will be entitled to paid vacation in accordance with the
Company’s vacation policy, with the timing and duration of specific vacations mutually and
reasonably agreed upon by the Parties.
7. Expenses. The Executive will be entitled to prompt reimbursement by the Company
for all reasonable ordinary and necessary travel, entertainment, and other expenses incurred by the
Executive during the Employment Period (in accordance with the policies and procedures established
by the Company for Company senior executive officers) in the performance of the Executive’s duties
and responsibilities under this Agreement; provided, that the Executive will properly account for
such expenses in accordance with Company policies and procedures. For
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purposes of this Section 7, the Parties agree that the Executive’s air travel will be coach
class domestically and business class internationally.
8. Other Activities. During the Company’s normal business hours, the Executive will
devote substantially all of the Executive’s working time and efforts to the Company’s business and
affairs and to diligently and faithfully performing the duties and responsibilities duly assigned
to the Executive pursuant to this Agreement, except for vacations, holidays, and sickness; provided
that the Executive may devote a reasonable amount of the Executive’s time to civic, community,
charitable, or other public activities, and may serve as a director of or consultant to other
persons, corporations, or businesses if none of such activities substantially interfere with the
Executive’s duties and obligations under this Agreement.
9. Termination Benefits. If the Executive’s employment terminates before the
Employment Period expires, then the Executive will be entitled to receive the following severance
and other benefits:
(a) Severance.
(i) Involuntary Termination. If the Company terminates the Executive’s employment for
any reason other than for death, Disability, or Cause, or if the Executive terminates the
Executive’s employment for Good Reason (each, an “Involuntary Termination”), then, instead
of any severance benefits to which the Executive may otherwise be entitled under any Company
severance plan or program and upon the execution of a mutually agreeable and commercially
reasonable severance and release agreement, the Executive will be entitled to receive payments from
the Company equal to the Base Salary plus full benefits (as in existence immediately before such
termination) until the earliest of (A) the Employment Period expiration; (B) the 12-month
anniversary of the effective date of the Executive’s Involuntary Termination; and (C) the date on
which the Executive breaches the Executive’s obligations under Section 10 or Section 11.
(ii) Other Termination. If the Executive’s employment terminates for Cause, because
of the Executive’s death or Disability, or because the Executive resigns for other than for Good
Reason, then the Executive will be entitled to receive severance and any other benefits only as may
then be established under the Company’s existing severance and benefit plans and policies at the
time of such termination.
(b) No Duty to Mitigate. The Executive will not be required to mitigate the amount of
any payment contemplated by this Agreement (whether by seeking new employment or in any other
manner).
10. Proprietary Information. During the Employment Period and thereafter, the
Executive will not, without the Board’s prior written consent, disclose or use for any purpose
(except in the course of the Executive’s employment under this Agreement and in furtherance of the
Company’s business) any of the Company’s confidential information or proprietary data. As an
express condition of the Executive’s employment with the Company, the Executive agrees to remain
subject to the Executive’s Confidential Information and Invention Assignment Agreement (the
“Confidentiality Agreement”). The Executive expressly agrees and acknowledges that the
Executive’s right to receive the severance payments set forth in Section 9 (to the extent that the
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Executive is otherwise entitled to such payments) will be conditioned upon compliance with the
restrictions in this Section 10.
11. Non-Solicitation.
(a) Covenants. Until the latter of (i) the nine-month anniversary of the Executive’s
employment termination for any reason and (ii) if applicable, the date of the last severance
payment made to the Executive pursuant to Section 9(a)(i), the Executive expressly agrees and
acknowledges that the Executive will not either directly or indirectly hire, recruit, solicit,
induce, solicit, or attempt to hire, recruit, solicit, encourage, or take away, any Company
employee or cause any Company employee to leave his or her employment either for the Executive or
for any other entity or person.
(b) Acknowledgment. The Executive represents that the Executive (i) is familiar with
the foregoing covenants not to solicit, and (ii) is fully aware of the Executive’s obligations
under such covenants, including the reasonableness of the length of time, scope, and geographic
coverage of these covenants, and (iii) agrees that the length of time, scope, and geographic
coverage of these covenants are reasonable and are necessary to protect the Company’s interests.
(c) Conditional Nature of Severance Payments. The Executive agrees and acknowledges
that the Executive’s right to receive the severance payments set forth in Section 9 (to the extent
that the Executive is otherwise entitled to such payments) will be conditioned upon compliance with
the restrictions contained in this Section 11.
12. Advice of Counsel. The Executive expressly acknowledges that the Executive has
consulted with counsel and is fully aware of the Executive’s rights and obligations under this
Agreement.
13. Successors. The Company will require any successor (whether direct or indirect,
by purchase, merger, consolidation, or otherwise) to all or substantially all of the Company’s
business and/or assets to expressly assume and agree to perform this Agreement in the same manner
and to the same extent that the Company would have been required to perform in the absence of such
succession. If the Company fails to receive such assumption agreement before such succession
becomes effective, then the Executive will become entitled to receive the benefits described in
Section 9(a)(i).
14. Assignment. This Agreement and all rights under this Agreement will be binding
upon and inure to the benefit of and be enforceable by the Parties and their respective personal or
legal representatives, executors, administrators, heirs, distributees, devisees, legatees,
successors, and assigns. This Agreement is personal in nature, and, subject to Section 13, neither
Party will, without the other Party’s prior written consent, assign, delegate, sublicense or
transfer this Agreement or any right, duty, or obligation under this Agreement to any other person
or entity; except that the Company may assign this Agreement to any wholly-owned Company
subsidiaries, provided that any such assignment will not relieve the Company of the
Company’s obligations under this Agreement. If the Executive dies while any amounts are still
payable to the Executive under this Agreement, then all such amounts, unless otherwise provided in
this Agreement, will be paid in
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accordance with the terms of this Agreement to the Executive’s devisee, legatee, or other
designee or, if there be no such designee, to the Executive’s estate.
15. Absence of Conflict. The Executive represents and warrants that the Executive’s
employment by the Company as described in this Agreement will not conflict with and will not be
constrained by any prior employment or consulting agreement or relationship. Without limiting the
foregoing, the Executive represents and warrants that the Executive is free to enter into this
Agreement and that there are no employment contracts, non-competition agreements, restrictive
covenants, or other agreements, whether oral or written, preventing the full performance of the
Executive’s duties under this Agreement. The Executive further covenants that, in the course of
performing his duties under this Agreement, the Executive will not use the confidential
information, trade secrets, intellectual property, or other proprietary information of any other
party without such party’s prior written consent.
16. Notices. All notices, requests, demands, and other communications required or
permitted by this Agreement will be in writing and will be deemed given (a) on the delivery date,
or, if earlier, (b) one day after being sent by a well-established commercial overnight service, or
(c) three days after being mailed by registered or certified mail, return receipt requested,
prepaid and addressed to the Parties or their successors at the following addresses, or at such
other addresses as the Parties may later designate in writing:
If to the Executive:
|
Xxxx X. Xxxxxxx | |
| [omitted in external version] | ||
If to the Company:
|
NextG Networks, Inc. | |
| 0000 X. Xxxx Xxxxxx, Xxxxx 000 | ||
| Xxxxxxxx, Xxxxxxxxxx 00000 | ||
with a copy (which will not constitute notice) to:
|
Hab Siam | |
| Siam Law Group | ||
| 0000 X. Xxxxxxxxxx Xxxx. | ||
| Xxxxxxxx, XX 00000 |
or to such other address or the attention of such other person as the receiving Party has
previously furnished to the other Party in writing in accordance with this Section 16.
17. Waiver. Either Party’s failure or delay in enforcing any right, power, or
privilege under this Agreement will not be deemed to constitute a waiver of such right, power, or
privilege.
18. Severability. Whenever possible, each provision of this Agreement will be
interpreted in such manner as to be effective and valid under applicable law, but, if any provision
of this Agreement is held to be invalid, illegal, or unenforceable in any respect under any
applicable law or rule in any jurisdiction, then such invalidity, illegality, or unenforceability
will not affect any other provision or any other jurisdiction, but this Agreement will be reformed,
construed, and enforced in such jurisdiction as if such invalid, illegal, or unenforceable
provision had never been contained in this Agreement, and any such invalid, illegal, or
unenforceable provision will be
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deemed modified to the limited extent required to permit its validity, legality, and
enforcement in a manner most closely representing the Parties’ intention as expressed in this
Agreement.
19. Arbitration.
(a) General. In consideration of the Executive’s service to the Company, the
Company’s promise to arbitrate all employment-related disputes, and the Executive’s receipt of the
compensation, pay raises, and other benefits paid to the Executive by the Company, both presently
and in the future, the Executive agrees that any and all controversies, claims, or disputes with
anyone (including the Company and any Company employee, officer, director, shareholder, or benefit
plan in their capacity as such or otherwise) arising out of, relating to, or resulting from the
Executive’s service to the Company under this Agreement or otherwise or the termination of the
Executive’s service with the Company, including any breach of this Agreement, will be subject to
binding arbitration under the Arbitration Rules set forth in California Code of Civil Procedure
Section 1280 through 1294.2, including Section 1283.05 (the “Rules”) and pursuant to
California law. Disputes that the Executive agrees to arbitrate, and thereby waive any jury trial
right, include any statutory claims under state or federal law, including, but not limited to,
claims under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of
1990, the Age Discrimination in Employment Act of 1967, the Older Workers Benefit Protection Act,
the California Fair Employment and Housing Act, the California Labor Code, claims of harassment,
discrimination, or wrongful termination, and any statutory claims. The Executive further
understands that this Agreement to arbitrate also applies to any disputes that the Company may have
with the Executive.
(b) Procedure. The Executive agrees that the American Arbitration Association
(“AAA”) will administer any arbitration and that a neutral arbitrator will be selected in a
manner consistent with its National Rules for the Resolution of Employment Disputes. The
arbitration proceedings will allow for discovery according to the rules set forth in the National
Rules for the Resolution of Employment Disputes or California Code of Civil Procedure. The
Executive agrees that the arbitrator will have the power to decide any motions brought by any party
to the arbitration, including motions for summary judgment and/or adjudication and motions to
dismiss and demurrers, before any arbitration hearing. The Executive agrees that the arbitrator
will issue a written decision on the merits. The Executive also agrees that the arbitrator will
have the power to award any remedies, including attorneys’ fees and costs, available under
applicable law. The Executive understands that the Company will pay for any administrative or
hearing fees charged by the arbitrator or AAA, except that the Executive will pay the first $200.00
of any filing fees associated with any arbitration that the Executive initiates. The Executive
agrees that the arbitrator will administer and conduct any arbitration in a manner consistent with
the Rules and that the Rules will govern to the extent that the Rules conflict with the AAA’s
National Rules for the Resolution of Employment Disputes conflict with the Rules.
(c) Remedy. Except as provided by the Rules, arbitration will be the sole, exclusive,
and final remedy for any dispute between the Executive and the Company. Accordingly, except as
provided for by the Rules, neither the Executive nor the Company will be permitted to pursue court
action regarding claims that are subject to arbitration. Notwithstanding the foregoing, the
arbitrator will not have the authority to disregard or refuse to enforce any lawful Company policy,
and the arbitrator will not order or require the Company to adopt a policy that is not otherwise
required by law and that the Company has not adopted.
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(d) Injunctive Relief. In addition to the right under the Rules to petition the court
for provisional relief, the Executive agrees that any Party may also petition the court for
injunctive relief where either Party alleges or claims a violation of this Agreement or the
Confidentiality Agreement or any other agreement regarding trade secrets, confidential information,
non-solicitation, or California Labor Code §2870. If either Party seeks injunctive relief, then
the prevailing Party will be entitled to recover reasonable costs and attorneys’ fees.
(e) Administrative Relief. The Executive understands that this Agreement does not
prohibit the Executive from pursuing an administrative claim with a local, state, or federal
administrative body such as the Department of Fair Employment and Housing, the Equal Employment
Opportunity Commission, or the workers’ compensation board. This Agreement does, however, preclude
the Executive from pursuing court action regarding any such claim.
(f) Voluntary Nature of Agreement. The Executive acknowledges and agrees that the
Executive has executed and delivered this Agreement voluntarily and without any duress or undue
influence by the Company or anyone else. The Executive further acknowledges and agrees that the
Executive has carefully read this Agreement and that the Executive has asked any questions needed
for the Executive to understand the terms, consequences, and binding effect of this Agreement and
to fully understand this Agreement, including that the Executive is waiving the Executive’s jury
trial rights. Finally, the Executive agrees that the Executive has been provided an opportunity to
seek the advice of an attorney of the Executive’s choice before signing this Agreement.
(g) THE EXECUTIVE HAS READ AND UNDERSTANDS THIS SECTION RELATING TO ARBITRATION. THE
EXECUTIVE UNDERSTANDS THAT, BY SIGNING AND DELIVERING THIS AGREEMENT, THE EXECUTIVE AGREES TO
SUBMIT ANY CLAIMS ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT, OR THE
INTERPRETATION, VALIDITY, CONSTRUCTION, PERFORMANCE, BREACH, OR TERMINATION OF THIS AGREEMENT TO
BINDING ARBITRATION, AND THAT THIS ARBITRATION CLAUSE CONSTITUTES A WAIVER OF EXECUTIVE’S RIGHT TO
A JURY TRIAL AND RELATES TO THE RESOLUTION OF ALL DISPUTES RELATING TO ALL ASPECTS OF THE
EMPLOYER/EMPLOYEE RELATIONSHIP, INCLUDING BUT NOT LIMITED TO, DISCRIMINATION CLAIMS.
20. Integration. This Agreement, together with the Founder’s Restricted Stock
Purchase Agreement and the Confidential Information Agreement, represents the entire agreement and
understanding between the Parties as to the subject matter of this Agreement and supersedes all
prior or contemporaneous agreements, whether written or oral. Without limiting the foregoing, this
Agreement amends and restates the Prior Agreement in its entirety; provided that this Agreement
will not be deemed to extinguish any debts or obligations that the Company has incurred to the
Executive through the Effective Date pursuant to the Prior Agreement or otherwise. No waiver,
alteration, or modification of any of the provisions of this Agreement will be binding, unless made
in writing and signed by the Parties and/or the Parties’ duly authorized representatives.
21. Headings. The section headings contained in this Agreement are for the Parties’
convenience only and will not in any way affect the meaning or interpretation of any provision of
this Agreement.
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22. Applicable Law. This Agreement will be governed by and construed in accordance
with the internal substantive laws, and not the choice-of-law rules, of the State of California.
23. Counterparts. This Agreement may be executed in one or more counterparts, none of
which need contain the signature of more than one Party, and each of which will be deemed to be an
original, and all of which together will constitute a single agreement.
24. Tax Withholding. All payments made pursuant to this Agreement will be subject to
applicable tax withholding.
25. Acknowledgment. The Executive acknowledges that the Executive has had the
opportunity to discuss this matter with and obtain advice from the Executive’s private attorney,
has had sufficient time to do so, has carefully read and fully understands all the provisions of
this Agreement, and is knowingly and voluntarily entering into this Agreement.
* * * * *
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Each Party has executed this Second Amended and Restated Executive Employment Agreement as of
the Effective Date.
COMPANY:
NEXTG NETWORKS, INC.
| By: | /s/ Xxxx X. Xxxxxxx | Date: | 07/21/04 | |||
| Title: | ||||||
| EXECUTIVE: | ||||||
| /s/ Xxxx X. Xxxxxxx | Date: | 07/21/04 | ||||
| Xxxx X. Xxxxxxx | ||||||
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