Exhibit 10.11
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (this "Agreement"), dated as of September
14, 1998 and effective as of the date of the closing of the transactions
contemplated by the Merger Agreement (as defined below) (the "Effective Date"),
is made by and between Pac-West Telecom, Inc., a California corporation (the
"Company"), and Xxxxx Xxxxx ("Executive"). Capitalized terms used herein and
otherwise defined herein have the meanings given to such terms in paragraph 14
hereof.
WHEREAS, the Company desires to employ Executive in the capacity and on
the terms and conditions set forth herein, and Executive desires to accept such
employment in such capacity and on such terms and conditions.
NOW, THEREFORE, in consideration of the mutual covenants herein and
other good and valuable consideration and the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. Employment. The Company shall employee Executive, and Executive
hereby accepts employment with the Company, upon the terms and conditions set
forth in this Agreement for the period beginning on the Effective Date and
ending as provided in paragraph 4 below (the "Employment Period").
2. Position and Duties.
(a) During the Employment Period, Executive shall serve as the "Vice
President - Network Operations" of the Company and shall have such duties,
responsibilities and authority as set forth herein and as shall be determined by
the Company's Chief Executive Officer and Executive Vice President - Technology
and Network Operations.
(b) Executive shall report to the Company's Executive Vice President
Technology and Network Operations, and Executive shall devote best efforts and
his business time and attention (on a full-time equivalent basis) to the
business and affairs of the Company and its Subsidiaries. Executive shall
perform his duties and responsibilities to the best of his abilities in a
diligent, trustworthy, businesslike and efficient manner.
3. Compensation and Benefits.
(a) Base Salary. During the Employment Period, Executive's base salary
shall be $180,000 for the first year after the Effective Date and $200,000 for
the second year after the Effective Date or such higher rate as the Board in its
sole discretion may designate from time to time (the "Base Salary"), which
salary shall be payable in regular installments in accordance with the Company's
general payroll practices and shall be subject to customary withholding and
other customary deductions.
(b) Bonuses. The Board shall award a bonus (the "Annual Bonus") to
Executive in an amount to be determined prior to each fiscal year by the Board
and Executive. The Annual Bonus may be structured, as agreed upon by Executive
and the Board in good faith, to provide for a portion of the Annual Bonus to be
paid upon the achievement by the Company of certain separate specific objectives
with such objectives generally designed to provide Executive with an Annual
Bonus of 25% of the Base Salary in a normal year. The Annual Bonus may exceed
25% of the Base Salary determined by the Board in its discretion. Such Annual
Bonus shall be payable within 90 days following the end of each fiscal year
during the Employment Period based upon the Company having achieved such
specific objectives for each fiscal year determined by the Board and the
Executive in good faith prior to such fiscal year and based upon the Executive's
performance during such fiscal year.
(c) Benefits.
(i) During Employment Period, Executive shall be entitled to
participate in all of the Company's employee benefit plans and programs
for which similarly situated executive employees of the Company are
generally eligible (subject to the Company's right to amend, modify or
terminate any such plan or program in accordance with its terms and
applicable law and subject in each case to any applicable waiting periods
or other restrictions contained in such benefit plans or programs), which
shall include but shall not be limited to, health insurance, dental
insurance and participation in the Company's 401(k) plan. The Company
shall match any contributions made by Executive to the Company's 401(k)
plan to the extent consistent with the Company's past practice and the
terms of such plan and to the extent consistent with applicable law.
(ii) Due to the fact that Executive will be required to be on
call continuously for emergency response and to travel extensively by
vehicle on company business, during the Employment Period, the Company
shall provide to Executive a reasonably priced car consistent with the
Company's past practice. Such company car shall be available for
Executive' use in a manner consistent with past practice. Executive
acknowledges and agrees that the Company may report all or a portion of
the cost of such car and its operation as additional compensation to
Executive if the Company reasonably believes the same may be required by
applicable tax law.
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(iii) Executive shall be entitled to three (3) weeks of paid
vacation during each year of the Employment Period, in addition to legal
holidays. Vacation hereunder shall accrue from year to year based upon the
Company's then current policy for all employees as established from time
to time by the Board in its sole discretion.
(iv) The Company shall reimburse Executive for all reasonable
expenses incurred by him in the course of performing his duties under this
Agreement which are consistent with the terms of this Agreement and the
Company's policies in effect from time to time with respect to travel,
entertainment and other business expenses, subject to the Company's
general policies with respect to reporting and reasonable documentation of
such expenses.
(d) Stock Options. Executive shall be eligible to participate in the
Company's employee stock option plans and other employee equity incentive plans
for which other similarly situated executive employees of the Company are
eligible. The amount of any awards under such plans to Executive shall be
determined by the Board in its sole discretion.
4. Term and Termination.
(a) The Employment Period shall be for term ending on the second
anniversary Effective Date (the "term"); provided that, notwithstanding anything
in this Agreement to the contrary, expressed or implied, or Section 2924 of the
California Labor Code or any similar provision of applicable law, the Employment
Period shall terminate prior to the expiration of the Term upon (i) Executive's
resignation for any reason (with such resignation being effective 30 days after
notice thereof is delivered by Executive to the Company), (ii) Executive's death
or Disability or (iii) termination of Executive's employment by the Company with
or without Cause.
5. Severance.
(a) If the Employment Period is terminated by the Company without
Cause, Executive shall be entitled to receive an amount equal to his Base Salary
at the times set forth in this Agreement for the remainder of the Term (for
purposes of this Section 5(a), the "Severance Period"), so long as Executive has
not breached and does not breach the provisions of any of paragraphs 6, 7, 8, 9,
10 or 12 below during the time period therein or in the agreement referenced
thereby.
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(b) If the Employment Period is terminated as a result of Executive's
Disability, Executive and/or his estate or beneficiaries, as the case may be,
shall be entitled to receive benefits under the Company's employee benefit
programs as in effect on the date of such termination to the extent permitted
thereunder and, in addition, shall be entitled to receive (i) an amount equal to
Executive's Base Salary at the times set forth in this Agreement of the one-year
period after the termination of the Employment Period and (ii) the amount of any
Annual Bonus otherwise payable to Executive pursuant to paragraph 3(b) above for
the fiscal year in which Executive's employment is terminated, except that the
amount of any such Annual Bonus otherwise payable pursuant to this paragraph
5(b) shall be pro rated on the basis of the number of days during such fiscal
year that Executive was employed by the Company.
(c) If the Employment Period is terminated as a result of Executive's
death, Executive and/or his estate or beneficiaries, as the case may be, shall
be entitled to receive benefits under the Company's employee benefit programs as
in effect on the date of as such termination to the extent permitted thereunder
and, in addition, shall be entitled to receive the amount of any Annual Bonus
otherwise payable to Executive pursuant to paragraph 3(b) above for the fiscal
year in which Executive's employment is terminated, except that the amount of
any such Annual Bonus otherwise payable pursuant to this paragraph 5(b) shall be
pro rated on the basis of the number of days during such fiscal year that
Executive was employed by the Company.
(d) If the Employment Period is terminated by the Company for Cause or
if Executive resigns for any reason, Executive shall be entitled to receive his
Base Salary through the date of termination and the Company shall have no
further liability whatsoever to Executive.
(e) Except as otherwise expressly provided herein or as expressly
required under Section 4980B of the Internal Revenue Code of 1986, as amended,
all of Executive's rights to fringe benefits and bonuses hereunder shall cease
upon termination of the Employment Period.
6. Confidential Information; Nonsolicitation.
(a) Executive agrees to execute on the date hereof and to be bound as
of the date hereof by the terms of the Company's form of confidentiality
agreement attached hereto as Exhibit A.
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(b) Executive agrees that until the date which is one year after the
termination of the Employment Period, he shall not directly, or indirectly
through another Person, (i) induce or attempt to induce any employee of the
Company or any of its Subsidiaries to leave the employ of the Company or such
Subsidiary, or in any way interfere with the relationship between the Company or
any of its Subsidiaries and any employee thereof, (ii) hire any person who was
an employee of the Company or any of its Subsidiaries at any time during the
180-day period immediately prior to the date on which such hiring would take
place (it being conclusively presumed by the Company and Executive so as to
avoid any disputes under this paragraph 6(b) that any such hiring within such
180-day period is in violation of clause (i) above), or (iii) call on, solicit
or service any customer, supplier, licensee, licensor or other business relation
of the Company or any of its Subsidiaries in order to induce or attempt to
induce such Person to cease doing business with the Company or such Subsidiary.
In addition, during the Employment Period and thereafter, Executive shall not in
any way interfere with the relationship between any such customer, supplier,
licensee or business relation and the Company or any of its Subsidiaries
(including making any negative statements or communications about the Company or
any of its Subsidiaries).
7. Company's Ownership of Intellectual Property.
(a) Executive acknowledges that all Work Product is the exclusive
property of the Company. Executive hereby assigns all right, total and interest
in and to such Work Product to the Company. Any copyrightable work prepared in
whole or part by Executive will be deemed "a work made for hire" under Section
201(b) of the 1976 Copyright Act, and the Company shall own all of the rights in
the copy right therein.
(b) The Company and Executive each acknowledge the applicability of
Section 2870 of the California Labor Code. Accordingly, the provisions of
paragraph 7(a) shall not apply to, and the term "Work Product" shall not
include, any invention that Executive developed entirely on his own time without
using the Company's equipment, supplies, facilities, or trade secret information
except those inventions that either: (i) relate at the time of conception or
reduction to practice of the invention to the Company's or any Subsidiary's
business, or to the actual or demonstrably anticipated research or development
of the Company or any Subsidiary; or (ii) result from any work performed by
Executive for the Company or any Subsidiary. Set forth on the attached "Excluded
Inventions Schedule" are the inventions Executive believes meet the criteria for
exclusion set forth above. Executive agrees to promptly advise the Company in
writing of any inventions developed after the Effective Date which Executive
believes meet the criteria for exclusion set forth above
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(c) Executive shall promptly and fully disclose all Work Product to the
Company and shall cooperate and perform all actions reasonably requested by the
Company (whether during or after the Employment Period) to establish, conform
and protect the Company's right, title and interest in such Work Product.
without limiting the generality of the foregoing, Executive agrees to assist the
Company, at the Company's expense, to secure the Company's rights in the Work
Product in any and all countries, including the execution of all applications
and all other instruments and documents which the Company shall deem necessary
in order to apply for and obtain rights in such Work Product and in order to
assign and convey to the Company the sole and exclusive right, title and
interest in and to such Work Product. If the Company is unable because of
Executive's mental or physical incapacity or for any other reason (including
Executive's refusal to do so after request therefor is made by the Company) to
secure Executive's signature to apply for or to pursue any application for any
United States or foreign patents or copyright registrations covering Work
Product belonging to or assigned to the Company pursuant to paragraph 7(a)
above, then Executive hereby irrevocably designates and appoints the Company and
its duly authorized officers and agents as Executive's agent and attorney
in-fact to act for and in Executive's behalf and stead to execute and file any
such applications and to do all other lawfully permitted acts to further the
prosecution and issuance of patents or copyright registrations thereon with the
same legal force and effect as if executed by Executive. Executive agrees not to
apply for or pursue any applications of or any United States or of foreign
patents or copyright registrations covering any Work Product other than pursuant
to this paragraph in circumstances where such patents or copyright registrations
are or have been or are required to be assigned to the Company.
8. Delivery of Materials Upon Termination of Employment. As requested
by the Company upon the termination of Executive's employment with the Company
for any reason, Executive shall promptly deliver to the Company all copies and
embodiments, in whatever form, of all Confidential Information and Work Product
in Executive's possession or within his control irrespective of the location or
form of such material and, if requested by the Company, shall provide the
Company with written confirmation that all such materials delivered to the
Company.
9. Subsequent Inventions. Executive understand and agrees that all
Intellectual Property Rights made, conceived, developed, or reduced to practice
by Executive, either alone or jointly with others, shall be disclosed to the
Company by Executive for six (6) months following the termination of the
Employment Period. Employee further agrees that all Intellectual Property Rights
made, conceived, developed or reduced to practice within six (6) months
following such termination shall be presumed to have been conceived during
Executive's employment with the Company and with the use of the Company's
Confidential Information, but such presumption may be overcome by Executive by a
showing that such Intellectual Property Rights were conceived after the
Employment Period and without the use of any such Confidential Information. In
the event Executive is not able to rebut such presumption and prove that such
Intellectual Property Rights were conceived after the Employment Period and
without the use of Confidential Information, Executive agrees to assign all
right, title and interest in such Intellectual Property Rights to the Company.
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10. Disclosure. Following the termination of the Employment Period,
Executive shall communicate the restrictions contained in this Agreement to any
Person intends to be employed by, provide consulting services to or otherwise
represent. Executive hereby consents to the Company's communication of the
restrictions contained in this Agreement to any such Person.
11. Enforcement; Remedies.
(a) If, at the time of enforcement of the covenants contained in
paragraphs 6, 7, 8, 9 or 10 (the "Protective Covenants"), a court shall hold
that the duration or scope stated therein are unreasonable under circumstances
then existing, the parties hereto agree that the maximum duration or scope
reasonable under such circumstances shall be substituted of the stated duration
or scope and that the court shall be allowed to revise the restrictions therein
to cover the maximum period or scope permitted by law. Executive has consulted
legal counsel regarding the Protective Covenants an based on such consultation
has determined and hereby acknowledges that the Protective Covenants are
reasonable in terms of duration and scope and are necessary to protect the
goodwill of the Company's business and the Confidential Information. Executive
future agrees that the Protective Covenants were a material to certain investors
of the Company to enter into the Merger Agreement and consummate the
transactions contemplated thereby, and such investors would not obtain the
benefit of the bargain as set forth in the Merger Agreement and the other
agreements contemplated thereby if Executive breached or challenged the validity
of any of the Protective Covenants.
(b) If Executive breaches, o threatens to commit a breach of, any of
the Protective Covenants, the Company shall have following rights and remedies,
each of which rights and remedies shall be independent of the others and
severally enforceable, and each of which is in addition to, and not in lieu of,
any other rights and remedies available to the Company at law or in equity:
(i) the right and remedy to have the Protective Covenants
specifically enforced by any court of competent jurisdiction (without
the need to post a bond or other security), it being agreed that breach
or threatened breach of the Protective Covenants would cause
irreparable injury to the Company and that money damages would not
provide an adequate remedy to the Company; and
(ii) the right and remedy to require Executive to account for
and pay over to the Company any profits, monies, accruals, increments
or other benefits derived or received by Executive as the result of any
transaction(s) constituting a breach of the Protective Covenants.
(c) In the event of nay breach or violation or violation by Executive
of any of the Protective Covenants, the time period of such covenant with
respect to Executive (to the extent such covenant is limited in duration) shall
be tolled until such breach or violation is resolved.
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12. Loss of Severance due to Competition.
(a) The Executive shall not during the Employment Period and during the
period Executive is receiving any Severance Payment pursuant to paragraph 5(a)
(the "Noncompete Period"), for himself or on behalf of any other person, firm,
partnership, corporation, or other entity, engage, directly or indirectly,
either as an officer, employee, partner, consultant, individual proprietor,
agent, or otherwise (including, but not limited to, as an owner or shareholder),
in any business which (A) provides telecommunication services of the type
provided during the Employment Period by the Company and any of its Subsidiaries
(including, without limitation, (i) switched local service, (ii) switched
long-distance service, (iii) dedicated transport services, (iv) co-locate and
interconnect services and (v) data switched services and including, without
limitation, telecommunication services of the type provided by the Company and
any of its Subsidiaries to information service providers) or (B) provides
services of the type which the Company and any of its subsidiaries have taken
significant actions during the Employment Period to begin providing or of the
type the Company or any of its Subsidiaries have indicated that they plan to
begin providing in any business plan or similar document delivered to Executive
during the Employment Period, in each case within any of the Restricted
Territories (as defined below); provided that the restrictions set forth in this
paragraph 12 shall not prohibit Executive from being a passive owner of not more
than 5% of the outstanding stock of any class of a corporation which is publicly
traded; and provided further that the restrictions set forth in this paragraph
12 shall not restrict the activities of Executive to the extent Executive has
received the consent of the Board to such activities; and provided further that
the restrictions set forth in this paragraph 12 shall not restrict the
activities of Executive with respect to his passive ownership of Utility
Telephone, Inc. ("UTI") for as long as UTI does not directly compete with the
Company.
(b) For purposes of this Agreement, "Restricted Territories" shall mean
(i) the counties (or similar jurisdictions) in the states of Arizona,
California, Colorado, Idaho, Nevada, New Mexico, Oregon, Texas, Utah and
Washington, the province of British Columbia, Canada and the territories and
jurisdictions of Mexico and (ii) any other jurisdictions which the Company or
its Subsidiaries are engaged in business during the Employment Period or have
taken significant actions to begin engaging in business during the Employment
Period. Executive acknowledges that the business of the Company is contemplated
in the jurisdictions set forth in subparagraph 12(b)(i) (including as the same
relates to the production, promotion, marketing and sale of its products and
services), and that the geographic restrictions set forth above are reasonable
and necessary to protect the goodwill of the Company's business.
(c) If Executive breaches any of the provisions of this paragraph 12,
Executive and the Company acknowledge an agree that the Company's sole remedy
for such breach shall be termination of the Severance Payments otherwise payable
to Executive pursuant to paragraph 5(a) hereof.
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13. Executive's Representations. Executive hereby represents and
warrants to the Company that (a) the execution, delivery and performance of this
Agreement by Executive do not and shall not conflict with, breach, violate or
cause a default under any contract, agreement, instrument, order judgment or
decree to which Executive is a party or by which he is bound, (b) Executive is
not a party to or bound by any employment agreement, noncompete agreement or
confidentiality agreement with any other person or entity, and (c) upon the
execution and delivery of this Agreement by the Company, this Agreement shall be
the valid and binding obligation of Executive, enforceable in accordance with
its terms. Executive hereby acknowledges and represents that he has consulted
with independent legal counsel regarding his rights and obligations under this
Agreement and that he fully understands the terms and conditions contained
herein.
14. Definitions.
"Affiliate" of any particular Person means any other Person
controlling, controlled by or under common control with such particular Person,
where "control" means the possession, directly or indirectly, of the power to
direct the management and policies of a Person whether through the ownership of
voting securities, contract or otherwise.
"Cause" means (A) Executive's theft or embezzlement, or attempted theft
or embezzlement, of money or property of the Company or any of its Affiliates,
Executive's perpetration or attempted perpetration of fraud, or Executive's
participation in a fraud or attempted fraud, on the Company or nay of its
Affiliates or Executive's appropriation of, or Executive's attempt to
misappropriate, any tangible or intangible assets or property of the Company or
any of its Affiliates; (B) Executive's conviction for commission of a felony or
conviction for any crime involving acts which tend or offend community moral
standards or public decency or that materially and adversely affect the
reputation or business activities of the Company or its Affiliates; (C)
Executive's substance abuse, including abuse of alcohol or use of illegal
narcotics, or other illegal drugs or substances, for which Executive fails to
undertake and maintain treatment within 15 days after requested by the
Corporation; (D) Executive's refusal to carry out the lawful instructions of the
Company's Chief Executive Officer or Executive Vice President Technology and
Network Operations following receipt of written notice of such instructions from
the Chief Executive Officer; or (E) Executive's material breach of any provision
of this Agreement which is incapable of cure or which is not cured within 15
days after written notice thereof to Executive.
"Confidential Information" means all information of a confidential or
proprietary nature (whether or not specifically labeled or identified as
"confidential"), in any form or medium, that is or was disclosed to, or
developed or learned by, Executive in connection with Executive's prior
relationship with the Company or during the Employment Period and that relates
to the business, products, services, research or development of the Company or
its suppliers, distributors or customers. Confidential Information includes but
is not limited to the following: (i) internal business information (including
information relating to strategic and staffing plans and practices, business,
training, marketing, promotional and sales plans and practices, cost, rate and
pricing
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structures and accounting and business methods); (ii) identifies of, individual
requirements of, specific contractual arrangements with, and information about,
the Company's suppliers, distributors and customers and their confidential
information; (iii) trade secrets, know-how, compilations of data and analyses,
techniques, systems, formulae, research, records, reports, manuals,
documentation, models, data and data bases relating thereto; and (iv)
inventions, innovations, improvements, developments, methods, designs, analyses,
drawings, reports and similar or related information (whether or not
patentable). Confidential Information shall not include information that
Executive can demonstrate: (a) is publicly known through no wrongful act or
breach of obligation of confidentiality; (b) was lawfully known to Executive
prior to the time Executive began rendering services to the Company and its
predecessors; or (c) was rightfully received by Executive from a third party
without a breach of any obligation of confidentiality by such third party.
"Disability" means the inability, due to illness, accident, injury,
physical or mental incapacity or other disability, of Executive to carry out
effectively his duties and obligations to the Company or to participate
effectively and actively in the management of the Company for a period of at
least 120 consecutive days or for shorter periods aggregating at least 180 days
(whether or not consecutive) during any twelve-month period, as determined in
the reasonable good faith judgment of the Board.
"Intellectual Property Rights" means all inventions, innovations,
improvements, developments, methods, processes, designs, analyses, drawings,
reports and all similar or related information (whether or not patentable or
reduced to practice) and any copyrightable work, trade xxxx, trade secret or
other intellectual property rights which relate to the Company's or any of its
Subsidiaries' actual or anticipated business.
"Merger Agreement" means that certain Agreement and Plan of Merger,
dated as of the date therefore, by and among the Company, Executive and other
parties signatory thereto, as amended and modified from time to time in
accordance with its terms.
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
trust, a joint venture, an unincorporated organization and a governmental entity
or any department, agency or political subdivision thereof.
"Subsidiary" means, with respect to any Person, any corporation,
limited liability company, partnership, association or other business entity of
which (i) if a corporation, a majority of the total voting power of shares of
stock entitled (without regard to the occurrence of any contingency) to vote in
the election of directors, managers or trustees thereof of at the time owned or
controlled, directly or indirectly, by the Person or one or more of the other
Subsidiaries of that Person or a combination thereof, or (ii) if a limited
liability company, partnership, association or other business entity, a majority
of the partnership or similar interest thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more Subsidiaries
of that Person or a combination thereof. For purposes hereof, a Person or
Persons shall be deemed to have a majority ownership interest in a limited
liability company, partnership, association or other
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business entity if such Person or Persons shall be allocated a majority of
limited liability company, partnership, association or other business entity
gains or losses or shall be or control any managing director or general partner
of such limited liability company, partnership, association or other business
entity.
"Work Product" means all inventions, innovations, improvements,
developments, methods, processes, designs, analyses, drawings, reports, research
and development of existing or future products or services which were or are
conceived, reduced to practice, contributed to or developed or made by Executive
(whether alone or jointly with others) while employed (both before and after the
Effective Date) by the Company (or its predecessors, successors or assigns) and
its Subsidiaries and all similar or related information (whether or not
patentable or reduced to practice) and any copyrightable work, trade xxxx, trade
secret or other intellectual property rights, any of which relate to the
Company's or any of its Subsidiaries' actual or anticipated business.
15. Survival. The provisions set forth in paragraphs 5 through 24 of
this Agreement shall survive and continue in full force and effect in accordance
with their terms notwithstanding any termination of the Employment Period.
16. Notices. Any notice provided for this Agreement shall be deemed to
have been given when delivered personally to the recipient, sent to the
recipient by reputable express courier (charge prepaid), telecopied (with hard
copy to follow) or mailed to the recipient by certified or registered mail,
return mail, return receipt requested and postage prepaid. Such notice will be
sent to Executive or to the Company at the address set forth below:
Notices to Executive:
---------------------
Xxxxx Xxxxx
0000 Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000 Office
Facsimile: (000) 000-0000
Notices to the Company:
-----------------------
Pac-West Telecomm, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement shall be deemed to have been given when so delivered
or mailed.
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17. Severability. Whenever possible, each provision of this Agreement
shall 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, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as is such invalid,
illegal or unenforceable provisions had never been contained herein. The
Executive acknowledges and agrees that the covenants and agreements set forth in
this agreement were a material inducement to certain investors of the Company to
enter into a Merger Agreement and consummate the transactions contemplated
thereby, and such investors would not obtain the benefit of their bargain as set
forth in the Merger Agreement and the other agreements contemplated thereby as
specifically negotiated by the investors if Executive breached or challenged any
of the provisions of this Agreement. Therefore, notwithstanding anything to the
contrary expressed or implied in this paragraph 17 or elsewhere in this
Agreement, the Executive unconditionally covenants and agrees that Executive
will not directly or indirectly challenge the validity, legality or
enforceability of any provision of this Agreement.
18. Complete Agreement. This Agreement and the Merger Agreement embody
the complete agreement and understanding among the parties and supersede and
preempt any prior understandings, agreements or representations by or among the
parties, written or oral, which may have related to the subject matter hereof in
any way.
19. No Strict Construction. The language use in this Agreement shall
be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction shall be applied against any
party. The use of the word "including" herein shall mean "including without
limitation."
20. Counterparts. This Agreement may be executed in separate
counterparts (including by means of telecopies signature pages), each of which
is deemed to be an original and all of which taken together constitute one and
the same agreement.
21. Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of and be enforceable by Executive, the Company and
their respective heirs, successors and assigns, except that Executive may not
assign his rights or delegate his obligations hereunder without prior written
connect of the Company.
22. Choice of Law. All issues and questions concerning the
construction, validity, enforcement and interpretation of this Agreement and any
schedules shall be governed by, and construed in accordance with, the laws of
the State of California, without giving effect to any choice of law or conflict
of law rules or provisions (whether of the State of California or any other
jurisdiction) that would cause the application of the laws of any jurisdiction
other than the State of California.
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23. Consent to Personal Jurisdiction. Executive hereby expressly
consents to the nonexclusive personal jurisdiction and venue of the state and
federal courts located in the federal Northern District of California for any
lawsuit filed against Executive by the Company arising from or relating to this
Agreement.
24. Amendment and Waiver. The provisions of this Agreement may be
amended or waived only with the prior written consent of the Company and
Executive, and no course of conduct or failure or delay in enforcing the
provisions of this Agreement shall affect the validity, binding effect or
enforceability of this Agreement.
* * * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement on the date first written above.
PAC-WEST TELECOMM, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
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Its: President & CEO
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By:
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Name:
--------------------------
Its:
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/s/ XXXXX XXXXX 9/14/98
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XXXXX XXXXX
-15-
EXCLUDED INVENTIONS SCHEDULE
----------------------------
None.
-16-
