EXHIBIT 10.13
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this "Agreement") is made and
entered into this 19th day of July, 1999 by and between OmniLynx Communications
Corporation, a Delaware corporation having its principal executive office at
0000 Xxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxx, Xxx Xxxx 00000 (hereinafter referred
to as the "Company"), and Xxxxxxx X. Xxxxxx (hereinafter referred to as the
"Employee").
W I T N E S S E T H:
WHEREAS, Employee desires to serve the Company as its Chief Financial
Officer; and
WHEREAS, the parties desire to provide that the Employee be employed by
the Company under the terms of this Agreement.
NOW, THEREFORE, for and in consideration of the mutual promises,
covenants and obligations contained herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Company and the Employee hereby agree as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following terms have
the meanings prescribed below:
ANNUAL BONUS shall have the meaning assigned thereto in Section 4.3
hereof.
BASE SALARY shall have the meaning assigned thereto in Section 4.1
hereof.
CAUSE shall have the meaning assigned thereto in Section 5.3 hereof.
CODE means the Internal Revenue Code of 1986, as amended, and the rules
and regulations promulgated by the Internal Revenue Service thereunder, all as
in effect from time to time during the Employment Period.
COMMON STOCK means the Company's common stock, par value $.0001 per
share.
COMPANY means OmniLynx Communications Corporation, a Delaware
corporation, the principal executive office of which is located at 0000 Xxxxx
Xxxxxxx, Xxxxx 000, Xxxxxxxxx, Xxx Xxxx 00000.
CONFIDENTIAL INFORMATION shall have the meaning assigned thereto in
Section 8.2 hereof.
DATE OF TERMINATION means the earliest to occur of (i) the date of the
Employee's death, (ii) the date on which the Employee terminates this Agreement
for any reason or (iii) the date of
receipt of the Notice of Termination, or such later date as may be prescribed
in the Notice of Termination in accordance with Section 5.6 hereof.
DISABILITY means an illness or other disability which prevents the
Employee from discharging his responsibilities under this Agreement for a period
of 180 consecutive calendar days, or an aggregate of 180 calendar days in any
calendar year, during the Employment Period, all as determined in good faith by
the Board of Directors of the Company.
EMPLOYEE means Xxxxxxx X. Xxxxxx, an individual who resides at 00 Xxxxxx
Xxxx Xxxxxx, Xxx Xxxxxxxxxx, Xxx Xxxxxx 00000.
EMPLOYMENT PERIOD shall have the meaning assigned thereto in Section 3
hereof.
EXCHANGE ACT means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated by the Securities and Exchange Commission
thereunder, all as in effect from time to time during the Employment Period.
NOTICE OF TERMINATION shall have the meaning assigned thereto in
Section 5.6 hereof.
SIGNING BONUS shall have the meaning assigned thereto in Section 4.2
hereof.
START DATE shall mean July 19, 1999.
SUBSIDIARY, when used with respect to any such entity, shall mean any
corporation or other business entity a majority of whose outstanding voting
stock or the equivalent entitled to vote for the election of directors is at the
time owned by such entity and/or one or more of its subsidiaries.
WITHOUT CAUSE shall have the meaning assigned thereto in Section 5.4
hereof.
2. GENERAL DUTIES OF COMPANY AND EMPLOYEE; WORK LOCATION.
2.1 The Company agrees to employ the Employee, and the Employee agrees
to accept employment by the Company and to serve the Company as its Chief
Financial Officer. Employee shall work at the Company's offices at 000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx or at such other offices or locations in the New
York metropolitan area as the Company may designate. The authority, duties and
responsibilities of the Employee shall include those duties of Chief Financial
Officer as are customarily attendant to such position as well as such other or
additional duties as may from time to time be assigned to the Employee by the
Board of Directors. While employed hereunder, the Employee shall devote his
full time and attention during normal business hours to the affairs of the
Company and use his best efforts to perform faithfully and efficiently his
duties and responsibilities. The Employee may (i) serve on corporate, civic or
charitable boards or committees provided that (A) such boards or committees do
not control or advise business entities that compete with the Company and
(B) all such services are promptly disclosed in writing to the Board of
Directors, (ii) deliver lectures, fulfill speaking engagements or teach at
educational institutions and (iii) manage
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personal investments, so long as such activities do not materially interfere
with the performance of the Employee's duties and responsibilities.
2.2 The Employee agrees and acknowledges that he owes a fiduciary duty
of loyalty, fidelity and allegiance to act at all times in the best interests of
the Company and to do no act and to make no statement, oral or written, which
would injure the Company's business, its interests or its reputation.
2.3 The Employee agrees to comply at all times with all applicable
policies, rules and regulations of the Company, including, without limitation,
the Company's Code of Ethics and the Company's policy regarding trading in the
Common Stock, as each is in effect from time to time during the Employment
Period.
3. TERM. Unless sooner terminated pursuant to other provisions hereof, the
Employee's period of employment under this Agreement shall be the period
beginning on the Start Date and ending on the third anniversary thereof. The
period of time beginning on the Start Date and ending on the third anniversary
thereof (notwithstanding termination of this Agreement prior to the end of such
period pursuant to other provisions hereof) is referred to elsewhere herein as
the "Employment Period."
4. COMPENSATION AND BENEFITS.
4.1 BASE SALARY. As compensation for services to the Company, the
Company shall pay to the Employee commencing on the Start Date until the Date of
Termination an annual base salary of $175,000 (the "Base Salary"). The Base
Salary shall be payable in equal semi-monthly installments or in accordance with
the Company's established policy, subject only to such payroll and withholding
deductions as may be required by law and other deductions applied generally to
employees of the Company for insurance and other employee benefit plans.
4.2 SIGNING BONUS. The Company shall pay the Employee a one-time
signing bonus ("Signing Bonus") of $25,000 on the Start Date.
4.3 ANNUAL BONUS. The Company will pay Employee an annual bonus
("Annual Bonus") of up to 50% of the Base Salary to be determined by the
Board of Directors in its sole discretion, based upon the performance of the
Employee. The Annual Bonus shall be payable at a time to be determined by the
Board of Directors in its sole discretion, consistent with the date(s) that
other executive bonuses are paid by the Company.
4.4 VACATION. Until the Date of Termination, the Employee shall be
entitled to vacation as determined by the Company's vacation policy for its
executive officers as in effect from time to time, but in no event less than
three weeks per calendar year. In addition, the Employee shall be entitled to
sick days and/or personal days consistent with the Company's policy for other
executives.
4.5 INCENTIVE, SAVINGS AND RETIREMENT PLANS. Until the Date of
Termination, the Employee shall be eligible to participate in and shall receive
all benefits under all executive
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incentive, savings and retirement plans (including 401(k) plans) and programs
currently maintained or hereinafter established by the Company for the
benefit of its executive officers and/or employees.
4.6 WELFARE BENEFIT PLANS. Until the Date of Termination, the
Employee and/or the Employee's family, as the case may be, shall be eligible to
participate in and shall receive all benefits under each welfare benefit plan of
the Company currently maintained or hereinafter established by the Company for
the benefit of its employees. Such welfare benefit plans may include, without
limitation, medical, dental, disability, group life, accidental death and travel
accident insurance plans and programs.
4.7 REIMBURSEMENT OF EXPENSES. The Employee may from time to time
until the Date of Termination incur various business expenses customarily
incurred by persons holding positions of like responsibility, including, without
limitation, travel, entertainment and similar expenses incurred for the benefit
of the Company. Subject to the Company's policy regarding the reimbursement of
such expenses as in effect from time to time during the Employment Period, the
Company shall reimburse the Employee for such expenses from time to time, at the
Employee's request, and the Employee shall account to the Company for all such
expenses.
4.8 STOCK OPTIONS. On the Start Date, the Company will grant the
Employee, as of the date of pricing of the Common Stock pursuant to the
Company's initial public offering (the "IPO"), non-qualified stock options (the
"Options") to purchase 100,000 shares of the common stock of the Company as
presently constituted, at the price per share at which shares of Common Stock
are sold in the IPO pursuant to an option agreement to be entered into (the
"Option Agreement") with the Company. The Options will vest as follows: (i)
33,333 of such shares upon the completion of the IPO, (ii) 33,333 of such shares
upon the first anniversary of the completion of the IPO, and (iii) the remaining
33,334 of such shares upon the second anniversary of the completion of the IPO.
The Options shall have a term of ten (10) years from the date of grant, and may
be exercised in whole or in part, from time to time, at any time after vesting
in accordance with the terms of the Company's 1999 Stock Incentive Plan and the
Option Agreement. Commencing with the IPO and for each partial or full calendar
year thereafter during the term hereof, provided Employee is then serving as an
employee of the Company, the Company shall grant to Employee options to purchase
such number of additional shares as the Board of Directors, in its sole
discretion, of the Company may determine, on such terms and conditions as shall
be established at such time, provided that, the additional grant of options will
be consistent with additional grants for the senior management team of the
Company based upon the Employee's performance and shall not be unreasonably
withheld.
5. TERMINATION.
5.1 DEATH. This Agreement shall terminate automatically upon the
death of the Employee.
5.2 DISABILITY. The Company may terminate this Agreement, upon
written notice to the Employee delivered in accordance with Sections 5.6
and 12.1 hereof, upon the Disability of the Employee.
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5.3 CAUSE. The Company may terminate the Employee's employment
hereunder for Cause. For purposes of this Agreement, the Company shall have
"Cause" to terminate the Employee's employment under upon (A) material breach of
this Agreement by the Employee, (B) the willful failure by the Employee to
substantially perform his duties hereunder (other than any such failure
resulting from the Employee's incapacity due to physical or mental illness) or
failure to follow the specific reasonable directives of the Board of Directors,
provided that the Employee does not cure such failure after written demand is
delivered to the Employee by the Company for substantial performance that
specifically identifies the manner in which the Company believes the Employee
has not substantially performed his duties and provides for a reasonable period
to cure such failure, or (C) the willful engaging by the Employee in misconduct
which is materially injurious to the Company, monetarily or otherwise. For
purposes of this paragraph, no act, or failure to act, on the Employee's part
shall be considered "willful" unless done, or omitted to be done, by him not in
good faith and without reasonable belief that his action or omission was in the
best interest of the Company. Notwithstanding the foregoing, the Employee shall
not be deemed to have been terminated for Cause without (i) 15 days notice to
the Employee setting forth the reasons for the Company's intention to terminate
for Cause and (ii) delivery to the Employee of a Notice of Termination as
defined in Section 5.6 hereof, from the Board of Directors finding that, in the
good faith opinion of the Board of Directors, the Employee was guilty of conduct
set forth above in clause (B) of this Section 5.3 and specifying the particulars
thereof in detail.
5.4 WITHOUT CAUSE. The Company may terminate this Agreement Without
Cause, upon written notice to the Employee delivered in accordance with
Sections 5.6 and 12.1 hereof. For purposes of this Agreement, the Employee will
be deemed to have been terminated "Without Cause" if (A) the Employee is
terminated by the Company for any reason other than Cause, Disability of the
Employee or death of the Employee, or (B) the Company requires the Employee to
relocate permanently to any office or location outside of the New York
metropolitan area without his consent.
5.5 BY THE EMPLOYEE. The Employee may terminate this Agreement for
any reason, upon written notice to the Company delivered in accordance with
Sections 5.6 and 12.1 hereof.
5.6 NOTICE OF TERMINATION. Any termination of this Agreement by the
Company for Cause, Without Cause or as a result of the Disability of the
Employee, or by the Employee for any reason, shall be communicated by Notice of
Termination to the other party hereto given in accordance with this Agreement.
For purposes of this Agreement, a "Notice of Termination" means a written notice
which (i) indicates the specific termination provision in this Agreement relied
upon, (ii) sets forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of the Employee's employment under the
provision so indicated and (iii) specifies the termination date, if such date is
other than the date of receipt of such notice (which termination date shall not
be more than 15 days after the giving of such notice).
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6. OBLIGATIONS OF COMPANY UPON TERMINATION.
6.1 CAUSE; BY EMPLOYEE; DISABILITY. If this Agreement shall be
terminated (i) by the Company for Cause or Death or Disability of the Employee
or (ii) by the Employee for any reason:
6.1.1 the Company shall pay to the Employee or his estate, in a
lump sum in cash within 30 days after the Date of Termination, the
aggregate of the following amounts:
(i) if not theretofore paid, the Base Salary through
the Date of Termination; and
(ii) in the case of compensation previously deferred by
the Employee, all amounts of such compensation previously
deferred and not yet paid by the Company; and
6.1.2 the Company shall, promptly upon submission by the
Employee of supporting documentation, pay or reimburse to the Employee
any costs and expenses paid or incurred by the Employee prior to the
Date of Termination which would have been payable under Section 4.7
hereof if the Employee's employment had not terminated.
6.2 WITHOUT CAUSE. If this Agreement shall be terminated by the
Company Without Cause:
6.2.1 the Company shall pay to the Employee, in a lump sum in
cash within 30 days after the Date of Termination, the aggregate of the
following amounts:
(i) if not theretofore paid, the Base Salary through the
Date of Termination; and
(ii) in the case of compensation previously deferred by
the Employee, all amounts of such compensation previously deferred
and not yet paid by the Company;
6.2.2 the Company shall, promptly upon submission by the Employee
of supporting documentation, pay or reimburse to the Employee any costs
and expenses paid or incurred by the Employee prior to the Date of
Termination which would have been payable under Section 4.7 hereof if the
Employee's employment had not terminated;
6.2.3 for a period of twelve months after the Date of
Termination, the Company shall continue benefits to the Employee and/or
the Employee's family at least equal to those which would have been
provided to them under Section 4.6 hereof if the Employee's employment
had not been terminated;
6.2.4 the Company shall pay to the Employee, in equal
semi-monthly installments, the Base Salary for a period of twelve months
after the Date of Termination; and
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6.2.5 for a period of twelve months after the Date of
Termination, the Options shall continue to vest and may be exercised
during the twelve month period in accordance with Section 4.8 hereof.
7. EMPLOYEE'S OBLIGATION TO AVOID CONFLICTS OF INTEREST. The Employee
hereby acknowledges that the Company will adopt a Code of Ethics and a conflicts
of interest policy which will apply to all of the Company's executive officers
and the Employee agrees to abide by the same. Failure of the Employee to abide
by such policy shall constitute Cause as defined in Section 5.3 of this
Agreement.
8. EMPLOYEE'S CONFIDENTIALITY OBLIGATION.
8.1 The Employee hereby acknowledges, understands and agrees that all
Confidential Information is the exclusive and confidential property of the
Company and its Subsidiaries which shall at all times be regarded, treated and
protected as such in accordance with this Section 8. The Employee acknowledges
that all such Confidential Information is in the nature of a trade secret.
8.2 For purposes of this Agreement, "Confidential Information" means
information which is used in the business of the Company or its Subsidiaries and
(i) is proprietary to or created by the Company or its Subsidiaries, (ii) gives
the Company or its Subsidiaries some competitive business advantage or the
opportunity of obtaining such advantage or the disclosure of which could be
detrimental to the interests of the Company or its Subsidiaries, (iii) is
designated as Confidential Information by the Company or its Subsidiaries, is
known by the Employee to be considered confidential by the Company or its
Subsidiaries, or from all the relevant circumstances should reasonably be
assumed by the Employee to be confidential and proprietary to the Company or its
Subsidiaries, or (iv) is not generally known by non-Company personnel; PROVIDED,
HOWEVER, that the term "Confidential Information" shall not include information
which is in the public domain through no fault of the Employee or any person
acting on his behalf. Such Confidential Information includes, without
limitation, the following types of information and other information of a
similar nature (whether or not reduced to writing or designated as
confidential):
8.2.1 Internal personnel and financial information of the Company
or its Subsidiaries, vendor information (including vendor characteristics,
services, prices, lists and agreements), purchasing and internal cost
information, internal service and operational manuals, and the manner and
methods of conducting the business of the Company or its Subsidiaries;
8.2.2 Marketing and development plans, price and cost data, price
and fee amounts, pricing and billing policies, quoting procedures, marketing
techniques, forecasts and forecast assumptions and volumes, and future plans and
potential strategies (including, without limitation, all information relating to
any acquisition prospect and the identity of any key contact within the
organization of any acquisition prospect) of the Company or its Subsidiaries
which have been or are being discussed;
8.2.3 Names of customers and their representatives, contracts
(including their contents and parties), customer services, and the type,
quantity, specifications and content of
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products and services purchased, leased, licensed or received by customers of
the Company or its Subsidiaries; and
8.2.4 Confidential and proprietary information provided to the
Company or its Subsidiaries by any actual or potential customer, government
agency or other third party (including businesses, consultants and other
entities and individuals).
8.3 As a consequence of the Employee's acquisition or anticipated
acquisition of Confidential Information, the Employee shall occupy a position of
trust and confidence with respect to the affairs and business of the Company and
its Subsidiaries. In view of the foregoing and of the consideration to be
provided to the Employee, the Employee agrees that it is reasonable and
necessary that the Employee make each of the following covenants:
8.3.1 Until the Date of Termination and for a period of three
years thereafter, the Employee shall not disclose Confidential Information to
any person or entity, either inside or outside of the Company, other than as
necessary in carrying out his duties and responsibilities as set forth in
Section 2 hereof, without first obtaining the Company's prior written consent
(unless such disclosure is compelled pursuant to court orders or subpoena, and
at which time the Employee shall give notice of such proceedings to the
Company).
8.3.2 Until the Date of Termination and for a period of three
years thereafter, the Employee shall not use, copy or transfer Confidential
Information other than as necessary in carrying out his duties and
responsibilities as set forth in Section 2 hereof, without first obtaining the
Company's prior written consent.
8.3.3 On the Date of Termination, the Employee shall promptly
deliver to the Company (or its designee) or destroy all written materials,
records and documents made by the Employee or which came into his possession on
or before the Date of Termination (even if prior to the date hereof) concerning
the business or affairs of the Company or its Subsidiaries, including, without
limitation, all materials containing Confidential Information.
9. DISCLOSURE OF INFORMATION, IDEAS, CONCEPTS, IMPROVEMENTS, DISCOVERIES AND
INVENTIONS. As part of the Employee's fiduciary duties to the Company, the
Employee agrees that during his employment by the Company and for a period of
three years following the Date of Termination, the Employee shall promptly
disclose in writing to the Company all information, ideas, concepts,
improvements, discoveries and inventions, whether patentable or not, and whether
or not reduced to practice, which are conceived, developed, made or acquired by
the Employee, either individually or jointly with others prior to the Date of
Termination, and which relate to the business, products or services of the
Company or its Subsidiaries, irrespective of whether the Employee used the
Company's time or facilities and irrespective of whether such information, idea,
concept, improvement, discovery or invention was conceived, developed,
discovered or acquired by the Employee on the job, at home, or elsewhere prior
to the Date of Termination. This obligation extends to all types of
information, ideas and concepts, including information, ideas and concepts
relating to new types of services, corporate opportunities, acquisition
prospects, the identity of key
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representatives within acquisition prospect organizations, prospective names
or service marks for the Company's business activities, and the like.
10. OWNERSHIP OF INFORMATION, IDEAS, CONCEPTS, IMPROVEMENTS, DISCOVERIES AND
INVENTIONS, AND ALL ORIGINAL WORKS OF AUTHORSHIP.
10.1 All information, ideas, concepts, improvements, discoveries and
inventions, whether patentable or not, which are conceived, made, developed or
acquired by the Employee or which are disclosed or made known to the Employee,
individually or in conjunction with others, during the Employee's employment by
the Company and which relate to the business, products or services of the
Company or its Subsidiaries (including, without limitation, all such information
relating to corporate opportunities, research, financial and sales data, pricing
and trading terms, evaluations, opinions, interpretations, acquisition
prospects, the identity of customers or their requirements, the identity of key
contacts within the customers' organizations or within the organization of
acquisition prospects, marketing and merchandising techniques, and prospective
names and service marks) are and shall be the sole and exclusive property of the
Company. Furthermore, all drawings, memoranda, notes, records, files,
correspondence, manuals, models, specifications, computer programs, maps and all
other writings or materials of any type embodying any of such information,
ideas, concepts, improvements, discoveries and inventions are and shall be the
sole and exclusive property of the Company.
10.2 In particular, the Employee hereby specifically sells, assigns,
transfers and conveys to the Company all of his worldwide right, title and
interest in and to all such information, ideas, concepts, improvements,
discoveries or inventions, and any United States or foreign applications for
patents, inventor's certificates or other industrial rights which may be filed
in respect thereof, including divisions, continuations, continuations-in-part,
reissues and/or extensions thereof, and applications for registration of such
names and service marks. The Employee shall assist the Company and its nominee
at all times, until the Date of Termination and for a period of three years
thereafter, in the protection of such information, ideas, concepts,
improvements, discoveries or inventions, both in the United States and all
foreign countries, which assistance shall include, but shall not be limited to,
the execution of all lawful oaths and all assignment documents requested by the
Company or its nominee in connection with the preparation, prosecution, issuance
or enforcement of any applications for United States or foreign letters patent,
including divisions, continuations, continuations-in-part, reissues and/or
extensions thereof, and any application for the registration of such names and
service marks.
10.3 In the event the Employee creates, during the Employee's
employment by the Company, any original work of authorship fixed in any tangible
medium of expression which is the subject matter of copyright (such as,
videotapes, written presentations on acquisitions, computer programs, drawings,
maps, architectural renditions, models, manuals, brochures or the like) relating
to the Company's business, products or services, whether such work is created
solely by the Employee or jointly with others, the Company shall be deemed the
author of such work if the work is prepared by the Employee within the scope of
his employment; or, if the work is not prepared by the Employee within the scope
of his employment but is specially ordered by the Company as a contribution to a
collective work, as a part of a motion picture or other audiovisual work, as a
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translation, as a supplementary work, as a compilation or as an instructional
text, then the work shall be considered to be a work made for hire, and the
Company shall be the author of such work. The Employee agrees to assist the
Company and its Subsidiaries, at all times, until the Date of Termination and at
all times thereafter, in the protection of the Company's worldwide right, title
and interest in and to such work and all rights of copyright therein, which
assistance shall include, but shall not be limited to, the execution of all
documents requested by the Company or its nominee and the execution of all
lawful oaths and applications for registration of copyright in the United States
and foreign countries.
11. EMPLOYEE'S NON-COMPETITION OBLIGATION.
11.1 Until the Date of Termination, and for a period of one year
thereafter if this Agreement is not terminated by the Company Without Cause, the
Employee shall not, acting alone or in conjunction with others, directly or
indirectly, in any of the business territories in which the Company or any of
its Subsidiaries is as of the Date of Termination conducting business, invest or
engage, directly or indirectly, in any business which is competitive with that
of the Company as of the Date of Termination or accept employment with or render
services to such a competitor as a director, officer, agent, employee or
consultant, or take any action inconsistent with the fiduciary relationship of
an employee to his employer; provided, however, that the beneficial ownership by
the Employee of up to three percent of the voting stock of any corporation
subject to the periodic reporting requirements of the Exchange Act shall not
violate this Section 11.1.
11.2 In addition to the other obligations agreed to by the Employee in
this Agreement, the Employee agrees that until the Date of Termination, and for
a period of one year thereafter if this Agreement is not terminated by the
Company Without Cause, he shall not at any time, directly or indirectly, (i)
induce, entice or solicit any employee of the Company to leave his employment,
(ii) contact, communicate or solicit any customer or acquisition prospect of the
Company derived from any customer list, customer lead, mail, printed matter or
other information secured from the Company or its present or past employees or
(iii) in any other manner use any customer lists or customer leads, mail,
telephone numbers, printed material or other information of the Company relating
thereto.
11.3 The parties hereto acknowledge and agree that (i) the agreements
and covenants set forth in this Section 11 are being made for good and valuable
consideration, the receipt and sufficiency of which is acknowledged; (ii) the
covenants contained in this Section 11 are an important aspect of this
Agreement, and the Company would not have entered into this Agreement absent the
inclusion of this Section 11; and (iii) the restrictions imposed in this
Section 11, including the geographic area and duration of the covenants made
herein, are reasonable and necessary to protect the Company. If the Employee
breaches or indicates an intention to breach any term or provision of this
Section 11, the parties hereto agree that the Company shall be entitled to the
right of both temporary and permanent injunctive relief and/or specific
performance. The right of the Company to such relief shall not be construed to
prevent the Company from pursuing, either consecutively or concurrently, any and
all other legal or equitable remedies available to it for such breach or
threatened breach, specifically including, without limitation, the recovery of
monetary damages. If any court determines that any provision of this
Section 11, or any part thereof, is
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unenforceable because of the duration or geographic scope of such provision,
the parties hereto agree that such court shall have the power to reduce the
duration or geographic scope of such provision, as the case may be, and the
parties hereto agree to request the court to exercise such power, and, in its
amended form, such provision shall then be enforceable and shall be enforced.
12.. MISCELLANEOUS.
12.1 NOTICES. All notices and other communications required or
permitted hereunder or necessary or convenient in connection herewith shall be
in writing and shall be deemed to have been given when delivered by hand or
mailed by registered or certified mail, return receipt requested, as follows
(provided that notice of change of address shall be deemed given only when
received):
If to the Company to:
OmniLynx Communications Corporation
0000 Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
If to the Employee to:
Xxxxxxx X. Xxxxxx
00 Xxxxxx Xxxx Xxxxxx
Xxx Xxxxxxxxxx, Xxx Xxxxxx 00000
or to such other names or addresses as the Company or the Employee, as the case
may be, shall designate by notice to the other party hereto in the manner
specified in this Section 12.1.
12.2 WAIVER OF BREACH. The waiver by any party hereto of a breach of
any provision of this Agreement shall neither operate nor be construed as a
waiver of any subsequent breach by any party.
12.3 ASSIGNMENT. This Agreement shall be binding upon and inure to the
benefit of the Company, its successors, legal representatives and assigns, and
upon the Employee, his heirs, executors, administrators, representatives and
assigns; provided, however, the Employee agrees that his rights and obligations
hereunder are personal to him and may not be assigned without the express
written consent of the Company.
12.4 ENTIRE AGREEMENT; NO ORAL AMENDMENTS. This Agreement, together
with any exhibit attached hereto and any document, policy, rule or regulation
referred to herein, replaces and merges all previous agreements and discussions
relating to the same or similar subject matter between the Employee and the
Company and constitutes the entire agreement between the Employee and the
Company with respect to the subject matter of this Agreement. This Agreement
may not be modified in any respect by any verbal statement, representation or
agreement made by any employee,
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officer, or representative of the Company or by any written agreement unless
signed by an officer of the Company who is expressly authorized by the
Company to execute such document.
12.5 ENFORCEABILITY. If any provision of this Agreement or application
thereof to anyone or under any circumstances shall be determined to be invalid
or unenforceable, such invalidity or unenforceability shall not affect any other
provisions or applications of this Agreement which can be given effect without
the invalid or unenforceable provision or application.
12.6 JURISDICTION; ARBITRATION. The laws of the State of New York
shall govern the interpretation, validity and effect of this Agreement without
regard to the place of execution or the place for performance thereof. Any
controversy or claim arising out of or relating to this Agreement, or the breach
thereof, shall be settled by arbitration located in New York, New York
administered by the American Arbitration Association in accordance with its
applicable arbitration rules, and the judgment on the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction thereof, which
judgment shall be binding upon the parties hereto.
12.7 INJUNCTIVE RELIEF. The Company and the Employee agree that a
breach of any term of this Agreement by the Employee would cause irreparable
damage to the Company and that, in the event of such breach, the Company shall
have, in addition to any and all remedies of law, the right to any injunction,
specific performance and other equitable relief to prevent or to redress the
violation of the Employee's duties or responsibilities hereunder.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have
executed this Agreement as of the date first written above.
OMNILYNX COMMUNICATIONS CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Xxxxxx X. Xxxxxxx, Chief Executive Officer
EMPLOYEE
/s/ Xxxxxxx X. Xxxxxx
------------------------------------------------
Xxxxxxx X. Xxxxxx
