EXHIBIT 10.9
EXECUTIVE EMPLOYMENT AGREEMENT
This Employment Agreement (this "AGREEMENT") is made and entered into
as of March 1, 2002 (the "EFFECTIVE DATE") by NEXTGEN COMMUNICATIONS
CORPORATION, a Delaware corporation (the "COMPANY"), and R. XXXXXX XXXXX, an
individual resident of the State of Texas (the "EXECUTIVE").
WITNESSETH
WHEREAS, the Executive has certain skills, experience, and abilities
that may be valuable to the success of the Company's operations and future
profitability;
WHEREAS, the Company desires to employ and retain the services of the
Executive as a full-time employee in the position of Chief Financial Officer,
and the Executive desires to work for and be employed by the Company in such
positions; and
WHEREAS, the Company and the Executive desire to set forth the terms
and conditions pursuant to which the Executive will be employed by the Company.
NOW, THEREFORE, in consideration of the foregoing premises and of the
mutual covenants and undertakings contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties to this Agreement hereby agree as follows:
Article 1: EMPLOYMENT TERM AND DUTIES
1.01 Employment. The Company hereby employs the Executive, and the
Executive hereby accepts employment by the Company, upon the terms and
conditions set forth in this Agreement.
1.02 Term. Unless earlier terminated as herein provided, the
Executive's employment with the Company pursuant to this Agreement shall
commence on the Effective Date and shall end on the final day of the Term (as
defined in this Section 1.02). For purposes of this Agreement, the "TERM" shall
mean a period of time commencing on the Effective Date and continuing until the
one-year anniversary of the Effective Date (the "EXPIRATION DATE"). The Term
shall be extended solely upon the mutual agreement of the parties hereto.
1.03 Duties and Services. The Executive will be employed as the Chief
Financial Officer of the Company in Houston, Texas, and will have such duties
and perform such services as are customary of such position, or as otherwise
requested by management officials senior in authority to the Executive. Subject
to his suffering a Disability (as defined in Article 4 of this Agreement), the
Executive will devote the majority of his business time, attention, skill, and
energy exclusively to the business of the Company and will use his commercially
reasonable best efforts to promote the success of the Company's business.
Article 2: COMPENSATION
2.01 Salary. Subject to the provisions of Article 4 of this Agreement
that relate to compensation of the Executive following the termination of the
Employment Period (as defined in Article 8 of this Agreement), the Executive
will be paid an annual base salary of $120,000 (such amount, as it may be
increased from time to time, is hereinafter referred to as "SALARY") for the
duration of the Term. The Company shall withhold from each installment of the
Salary all applicable federal, state, and local income and/or other payroll
taxes.
2.02 Benefits. For the duration of the Employment Period and as
otherwise set forth herein, the Executive and his dependents (if applicable),
will be permitted to participate in such pension, bonus, health insurance,
disability income insurance, and other employee benefit plans of the Company
(collectively, the "BENEFITS"), which may be in effect from time to time to the
extent the Executive and his dependents are eligible for participation under the
terms of such plans.
2.03 Stock Options and Common Stock. The Executive shall be eligible to
receive grants of stock options or restricted stock purchase rights pursuant to
the Company's 2001 Stock Plan, as amended, or other equity incentive plan, in
amounts (if any) and on terms and conditions to be determined by the Board of
Directors of the Company (the "BOARD") or a committee thereof. The Board has
granted the Executive stock option rights for 150,000 shares of common stock,
$.001 par value per share (the "COMMON STOCK") as of the date hereof, by
entering into a Stock Option Agreement with the Executive in the form attached
hereto as Exhibit A. The Board has also approved the purchase by the Executive
of 50,000 shares of Common Stock as of the date hereof, pursuant to the terms
and conditions of a Restricted Stock Purchase Agreement in the form attached
hereto as Exhibit B.
2.04 Payment and Reimbursement of Expenses. The Company shall pay or
reimburse the Executive for tuition and related expenses paid by the Executive
in connection with Executive's enrollment in the Executive Masters of Business
Administration program at the University of Texas in Austin, up to an aggregate
amount of $9,000 per semester. The Company shall reimburse the Executive for
costs associated with the Executive's relocation to Houston, Texas, up to an
aggregate amount of $30,000. The Company shall pay the Executive a housing
allowance of $3,375 per month for each of the first four months following the
Effective Date. The Company shall pay or reimburse the Executive for all
reasonable travel and other expenses incurred by the Executive in performing his
obligations under this Agreement in accordance with the policies and procedures
of the Company for its senior executive officers, provided that the Executive
properly accounts therefor in accordance with the regular policies of the
Company.
2.05 Automobile Use or Allowance. The Company shall, at its option,
either (i) provide the Executive with the use of a vehicle, or (ii) pay the
Executive a car allowance of $1,000 per month. The Company shall also reimburse
the Executive for all actual expenses associated with operating and maintaining
the vehicle driven by the Executive. The Executive shall submit receipts or
other evidence of such expenditures, and the Company shall pay these amounts to
the Executive within 30 days of receipt of such documentation.
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Article 3: FACILITIES AND EXPENSES
The Executive will use the office space, equipment, supplies, and such
other facilities, property, and personnel as are currently being provided by the
Company for such purposes to perform his duties under this Agreement. The
Company will reimburse the Executive for reasonable expenses incurred by the
Executive in the performance of his duties in accordance with the Company's
employment policies in effect from time to time; provided, however, that the
Executive must file written expense reports with respect to such expenses, in
accordance with the Company's employment policies, before the Executive may
receive such reimbursement.
Article 4: TERMINATION
4.01 Termination of Employment Period.
(a) Death of the Executive. The Employment Period shall
terminate immediately and automatically upon the death of the Executive.
(b) Termination by the Company. The Company may terminate the
Employment Period (i) immediately upon the delivery of a Notice of Termination
(as defined in Section 4.01(d) of this Agreement) by the Company to the
Executive setting forth the facts that indicate that a determination has been
made that the Executive has a Disability in accordance with Section 4.02 of this
Agreement; (ii) immediately upon delivery of a Notice of Termination by the
Company to the Executive setting forth the facts that indicate that an event
constituting Cause (as defined in Section 4.03 of this Agreement) has occurred,
or on such later date as may be set forth in such Notice of Termination; or
(iii) at any time without Cause effective as of the 30th day following the
delivery of a Notice of Termination by the Company to the Executive, or on such
later date as may be set forth in such Notice of Termination.
(c) Termination by the Executive. The Executive may terminate
the Employment Period immediately upon delivery of a Notice of Termination by
the Executive to the Company (i) without Good Reason (as defined in Section 4.04
of this Agreement), or (ii) setting forth facts that indicate that an event
constituting Good Reason has occurred, or the Executive has obtained actual
knowledge of an event constituting Good Reason, within the 30 days immediately
prior to the date of delivery of such Notice of Termination.
(d) Notice of Termination. For purposes of this Agreement, a
"NOTICE OF TERMINATION" shall mean a written notice (delivered in accordance
with Section 7.06 herein) that indicates the specific termination provision in
this Agreement upon which the person intending to terminate the Employment
Period is relying and sets forth in reasonable detail the facts and
circumstances that provide a basis for termination of the Employment Period
under such termination provision.
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4.02 Definition of "Disability." For purposes of this Agreement, the
Executive will be deemed to have a "DISABILITY" under any of the following
conditions: (a) for physical or mental reasons, the Executive is unable to
render and perform substantially and continuously the Executive's duties and
services as required by this Agreement for 12 consecutive weeks, or for 16
nonconsecutive weeks during any 12-month period, or (b) the prognosis or
recommendations of the Examining Doctor (as defined in this Section 4.02) are
such that the Executive would be unable to render and perform substantially and
continuously the Executive's duties and services under this Agreement for 12
consecutive weeks, or for 16 nonconsecutive weeks during any 12-month period.
Upon the request of either party hereto following written notice to the other,
the Disability of the Executive will be determined by a medical doctor (the
"EXAMINING DOCTOR") who shall be selected as follows: the Company and the
Executive shall each select a medical doctor, and those two medical doctors will
select a third medical doctor who will be the Examining Doctor. The
determination of the Examining Doctor as to whether or not the Executive has a
Disability will be binding on both parties hereto. The Executive must submit to
a reasonable number of examinations by the Examining Doctor at the Company's
expense, and the Executive hereby authorizes the disclosure and release to the
Company of such determination and the results of such examinations. The Company
agrees not to disclose or release the determination of the Examining Doctor or
results of such examinations without the prior written authorization of the
Executive or, if the Executive is not legally competent, the Executive's legal
guardian or duly authorized attorney-in-fact. If the Executive is not legally
competent, the Executive's legal guardian or duly authorized attorney-in-fact
will act in the Executive's stead under this Section 4.02 for the purposes of
submitting the Executive to examinations and providing any such authorizations
of disclosure.
4.03 Definition of "Cause." For purposes of this Agreement, "CAUSE"
shall mean: (a) the Executive's material and persistent failure to perform his
duties and services in accordance with this Agreement, unless such failure is
due to the Executive's Disability, or the Executive's material violation of this
Agreement or any material inaccuracy of any representation or warranty of the
Executive contained herein, unless, for any such failure, violation, or
inaccuracy which is capable of being cured, the Executive cures such failure,
violation, or inaccuracy within 10 days of the Company providing written notice
to the Executive of such failure, violation, or inaccuracy; (b) the
appropriation (or attempted appropriation) of a material business opportunity of
the Company, including attempting to secure or securing any personal profit in
connection with any transaction entered into on behalf of the Company; (c) the
theft, fraud, or embezzlement of any of the real or personal property, tangible
or intangible, of the Company or any of its Affiliates; (d) the commission of an
act of fraud upon, or bad faith or willful misconduct toward, the Company or any
of its Affiliates; (e) conduct constituting gross negligence or recklessness, as
determined by the Company in its sole discretion, which the Company will
exercise in good faith, that is materially injurious to the Company, a customer
of the Company, or any of the Company's Affiliates; or (f) the conviction of,
the indictment for (or its procedural equivalent), or the entering of a guilty
plea or plea of no contest with respect to, a felony, the equivalent thereof, or
any other crime with respect to which imprisonment is a possible punishment.
4.04 Definition of "Good Reason." For the purposes of this Agreement,
the phrase "GOOD REASON" means (i) the Company's material breach of this
Agreement and the Company's failure to
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remedy such breach within 10 days following the delivery of written notice of
such breach by the Executive to the Company; or (ii) the assignment by the
Company to the Executive, without the prior written consent of the Executive, of
responsibilities or duties that are substantially different from the duties and
services set forth in Section 1.03 of this Agreement.
4.05 Effect of Termination of Employment Period; Post-Termination
Benefits. Upon the termination of the Employment Period in accordance with
Section 4.01 of this Agreement, the Executive's obligation to render to the
Company the services described in Section 1.03 of this Agreement shall cease
(although the Term shall not terminate), and the Company shall pay the Executive
or, in the event of his death while amounts remain payable hereunder, his
Designated Beneficiary (as defined in this Section 4.05), as follows:
(a) Termination by the Company with Cause or by the Executive
without Good Reason. If the Employment Period is terminated in accordance with
Section 4.01(b)(ii) or Section 4.01(c)(i) of this Agreement, the Executive will
be entitled to receive solely that portion of his Salary, payable in accordance
with the Company's normal payroll practices, accrued by the Executive as of the
date of the termination of the Employment Period; provided, however, that the
Executive shall not receive, and shall not be entitled to receive, any Salary or
Benefits (except for Salary and Benefits accrued prior to the date of the
termination of the Employment Period) during the remainder of the Term following
such termination, or thereafter, except as otherwise required in accordance with
federal or state law or the terms of the plans governing the benefits provided
hereunder.
(b) Termination by the Company without Cause or by the
Executive with Good Reason. If the Employment Period is terminated in accordance
with Section 4.01(b)(iii) or Section 4.01(c)(ii) of this Agreement, the Company
shall pay the Executive a lump sum equal to six months' Salary on the date the
Employment Period is terminated, and, in accordance with the Company's normal
payroll practices, the customary installments of the Salary and the Benefits for
a period of six months following the date the Employment Period is terminated.
(c) Termination upon Death or Disability. If the Employment
Period is terminated in accordance with Section 4.01(a) or Section 4.01(b)(i),
the Company will pay to the disabled Executive or to the Executive's Designated
Beneficiary, as the case may be, in accordance with its normal payroll
practices, the customary installments of the Salary and the Benefits that were
provided to the Executive during the Employment Period, if applicable, until the
180th day following the date of the Executive's death or the date of the
determination by the Examining Doctor that the Executive has a Disability, as
the case may be. Following such date, the Executive or the Executive's
Designated Beneficiary shall have no right to receive, and the Company shall
have no further obligation to pay to the Executive, further monthly installments
of Salary or Benefits; provided, however, that, in the event the Executive is
determined to have a Disability, the Company has maintained the disability
income insurance referred to in Section 2.02 of this Agreement and the Executive
is entitled to benefits under that insurance. In the event the Company has not
maintained such disability income insurance, then the Company shall continue to
pay the Salary and the Benefits to the Executive for the remainder of the Term.
For the purposes of this Agreement, the Executive's "DESIGNATED BENEFICIARY"
means such individual beneficiary or trust, located at such address as the
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Executive may designate by written notice to the Company from time to time or,
if the Executive fails to give written notice to the Company of such a
beneficiary, the Executive's estate; provided, however, that, notwithstanding
the preceding sentence, the Company shall have no duty under any circumstances
to attempt to open an estate on behalf of the Executive, to determine whether
any beneficiary designated by the Executive is alive, to determine the existence
of any trust, to determine whether any person or entity purporting to act as the
Executive's personal representative (or the trustee of a trust established by
the Executive) is duly authorized to act in that capacity, or to locate or
attempt to locate any beneficiary, personal representative, or trustee.
(d) Accrued Benefits. Unless otherwise required by this
Agreement, federal or state law, or the terms of the relevant plans providing
Benefits hereunder, the Executive's accrual of the Benefits pursuant to Section
2.02 hereof will cease on the date of the termination of the Employment Period,
and the Executive will thereafter be entitled to accrued Benefits pursuant to
such plans only as provided in such plans.
(e) Payment and Reimbursement of Expenses. The payment and
reimbursement of expenses pursuant to Section 2.04 hereof will cease on the date
of the termination of the Employment Period, other than applicable expenses that
are incurred prior to the date of the termination of the Employment Period and
submitted to the Company for reimbursement within 30 days of the termination of
the Employment Period.
Article 5: NON-DISCLOSURE COVENANT
5.01 Confidential Information Defined. For the purposes of this Article
5, the phrase "CONFIDENTIAL INFORMATION" means any and all of the following:
trade secrets concerning the business and affairs of the Company or its
Affiliates, product specifications, data, know-how, formulae, compositions,
processes, designs, sketches, photographs, graphs, drawings, samples, inventions
and ideas, past, current, and planned research and development, current and
planned distribution methods and processes, customer lists, current and
anticipated customer requirements, price lists, market studies, business plans,
computer software and programs (including object code, machine code, and source
code), computer software and database technologies, systems, structures, and
architecture (and related formulae, compositions, processes, improvements,
devices, know-how, inventions, discoveries, concepts, ideas, designs, and
methods); information concerning the business and affairs of the Company or its
Affiliates (which includes historical financial statements, financial
projections and budgets, historical and projected sales, capital spending
budgets and plans, the names and backgrounds of key personnel, personnel
training techniques and materials, however documented); and notes, analysis,
compilations, studies, summaries, and other material prepared by or for the
Company or its Affiliates containing or based, in whole or in part, on any
information included in the foregoing. Notwithstanding the foregoing,
Confidential Information shall not include any information that the Executive
demonstrates was or became generally available to the public other than as a
result of a disclosure of such information by the Executive or any other person
under a duty to keep such information confidential.
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5.02 Acknowledgment by the Executive. The Executive acknowledges that
(a) during the Employment Period and as part of his employment, the Executive
will be afforded access to Confidential Information that the Company has devoted
substantial time, effort, and resources to develop and compile; (b) public
disclosure of such Confidential Information would have an adverse effect on the
Company and its business; (c) the Company would not disclose such information to
the Executive, nor employ or continue to employ the Executive without the
agreements and covenants set forth in this Article 5; and (d) the provisions of
this Article 5 are reasonable and necessary to prevent the improper use or
disclosure of Confidential Information and to enable the Company to acquire sole
and exclusive ownership of the Employee Inventions.
5.03 Maintaining Confidential Information. In consideration of the
compensation and benefits to be paid or provided to the Executive by the Company
under this Agreement and the acknowledgments set forth above, the Executive,
during the Employment Period, the Term, and at all times thereafter and for a
period of (i) two years, or (ii) until such time as the information as listed in
section 5.01 is no longer found to be confidential information pursuant to Texas
common law, whichever is shorter, agrees and covenants as follows:
(a) Company Information. The Executive will hold in strictest
confidence the Confidential Information and will not disclose it to any Person
(defined below) except with the specific prior written consent of the Company or
as may be required by court order, law, government agencies with which the
Company deals in the ordinary course of its business, or except as otherwise
expressly permitted by the terms of this Agreement. Any trade secrets of the
Company will be entitled to all of the protections and benefits afforded under
applicable laws. If any information that the Company deems to be a trade secret
is ruled by a court of competent jurisdiction not to be a trade secret, such
information will, nevertheless, be considered Confidential Information for
purposes of this Agreement. The Executive hereby waives any requirement that the
Company submit proof of the economic value of any trade secret or post a bond or
other security. The Executive will not remove from the Company's premises or
record (regardless of the media) any Confidential Information of the Company or
its Affiliates, except to the extent such removal or recording is necessary for
the performance of the Executive's duties. The Executive acknowledges and agrees
that all Confidential Information, and physical embodiments thereof, whether or
not developed by the Executive, are the exclusive property of the Company or its
Affiliates, as the case may be.
(b) Third-Party Information. The Executive recognizes that the Company
and its Affiliates have received and in the future will receive from third
parties their confidential or proprietary information subject to a duty on their
parts to maintain the confidentiality of such information and to use it only for
certain limited purposes. The Executive agrees that he owes the Company, its
Affiliates, and such third parties, during the period stated in section 5.03, a
duty to hold all such confidential or proprietary information in the strictest
confidence and not to disclose it to any Person (except as necessary in carrying
out his duties for the Company consistent with the Company's agreement with such
third party) or to use it for the benefit of anyone other than for the Company
or such third party (consistent with the Company's agreement with such third
party) without the express written authorization of the Company or its
Affiliate, as the case may be.
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(c) Returning Company Documents. The Executive agrees that, at
the time of the termination of the Employment Period, he will deliver to the
Company, on written request of the Company, any and all devices, records, data,
notes, reports, proposals, lists, correspondence, specifications, drawings,
blueprints, sketches, materials, equipment, other documents or property, or
reproductions of any of the aforementioned items belonging to the Company or any
of its Affiliates, and their respective successors or assigns, regardless of
whether such items are represented in tangible, electronic, digital, magnetic or
any other media. In the event of the termination of the Employment Period, the
Executive agrees to sign and deliver the "TERMINATION CERTIFICATION" attached
hereto as Exhibit C.
5.04 Disputes or Controversies. The Executive recognizes that should a
dispute or controversy arising from or relating to this Agreement be submitted
for adjudication to any court or other third party, the preservation of the
secrecy of Confidential Information may be jeopardized. All pleadings,
documents, testimony, and records relating to any such adjudication will be
maintained in secrecy and will be available for inspection by the Company, the
Executive, and their respective attorneys and experts, who will agree, in
advance and in writing, to receive and maintain all such information in secrecy,
except as may be limited by them in writing.
Article 6: NON-COMPETITION AND NON-INTERFERENCE
6.01 Covenants Regarding Competitive Protection. The Company and the
Executive hereby mutually agree that the nature of the Company's business and
the Executive's employment hereunder are based on the Company's goodwill, public
perception, and customer relations. Therefore, in consideration of the
acknowledgments set forth in Section 5.02 herein and the compensation and
benefits to be paid to the Executive pursuant to this Agreement, the Executive
hereby agrees and covenants to each and all of the following:
(a) Noncompete. During the Restricted Period, the Executive
will not, directly or indirectly, in any capacity whatsoever, individually or on
behalf of any other person or entity, engage or invest in (with the exception of
investing in a publicly traded company, not to exceed a 5% interest in such
company), own, manage, operate, finance, control, or participate in the
ownership, management, operation, financing, or control of, be employed by,
associated with, or in any manner connected with, lend the Executive's name or
any similar name to, lend the Executive's credit to or render services or advice
to, any business engaged or about to become engaged in the Business of the
Company, or any of its Affiliates, in the Market Area. For purposes of this
Agreement, the "BUSINESS" of the Company, or its Affiliates, includes all those
businesses, products, and services that are presently or hereafter marketed by
the Company, or its Affiliates during the Term, including the acquisition of
communication towers, or that are known by the Executive to be in the
development stage at any time during the Term; and any other business in which
the Company, or any of its Affiliates, are engaged in at any time during the
Term.
(b) Solicitation of Customers. During the Restricted Period,
the Executive hereby covenants and agrees that he will not, either directly or
through an Affiliate, solicit any Person that is a Current Customer (defined
below) of the Company or its Affiliates for purposes of selling products or
services to such Person that are in competition with the products and services
offered or sold by the Company or its Affiliates.
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(c) Solicitation of Employees. During the Restricted Period,
the Executive hereby agrees not to employ, either directly or through an
Affiliate, any current employee of the Company or its Affiliates or any
individual who was an employee of the Company or its Affiliates at any time
during the Term, and agrees not to solicit, or contact in any manner that could
reasonably be construed as a solicitation, either directly or through an
Affiliate, any employee of the Company or its Affiliates for the purpose of
encouraging such employee to leave or terminate his or her employment with the
Company or its Affiliates; provided, however, that the Executive is not
prohibited under this Section 6.01(c) from conducting any advertisement or
general solicitation (or hiring as a result thereof) that is not specifically
targeted at any current employee of the Company or its Affiliates or any
individual who was an employee of the Company or its Affiliates at any time
during the Term nor is the Executive prohibited under this Section 6.01(c) from
the solicitation or hiring of any current employee of the Company or its
Affiliates or any individual who was an employee of the Company or its
Affiliates at any time during the Term who initiates employment discussions,
directly or indirectly, with the Executive.
(d) Solicitation of Vendors. During the Restricted Period, the
Executive hereby agrees not to solicit, either directly or through an Affiliate,
a current vendor or supplier of the Company or its Affiliates for purposes of
encouraging such vendor or supplier to cease or diminish providing products or
services to the Company or its Affiliates, or to change adversely the terms
under which such vendor or supplier provides such products or services to the
Company or its Affiliates.
(e) Interference. During the Restricted Period, the Executive
hereby agrees not to interfere with the Company's relationship with any person
who at the relevant time is an employee, contractor, supplier, or customer of
the Company or its Affiliates.
(f) Restricted Period. For purposes of this Section 6.01, the
term "RESTRICTED PERIOD" means the duration of the Term and 365 days following
the date of termination of this Agreement by either party for any reason.
(g) Market Area. For purposes of this Section 6.01, the term
"MARKET AREA" means any state or province in which the Company or its Affiliates
have provided goods or services or otherwise operated within the twelve months
prior to the last day of the Term.
6.02 Scope. The Executive acknowledges and agrees that the geographic
area, length and scope of the restrictions contained in Section 6.01 are
reasonable and necessary to protect the legitimate business interests of the
Company. The duration of the agreements contained in Section 6.01 shall be
extended for the amount of any time of any violation thereof and the time, if
greater, necessary to enforce such provisions or obtain any relief or damages
for such violation through the court system. The Company may, at any time on
written notice approved by its Board, reduce the geographic area, length or
scope of any restrictions contained in Section 6.01 and, thereafter, the
Executive shall comply with the restriction as so reduced, subject to subsequent
reductions. If any
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covenant in Section 6.01 of this Agreement is held to be unreasonable,
arbitrary, or against public policy, such covenant will be considered to be
divisible with respect to scope, time, and geographic area, and such lesser
scope, time, or geographic area, or all of them, as an arbitrator or a court of
competent jurisdiction may determine to be reasonable, not arbitrary, and not
against public policy, will be effective, binding, and enforceable against the
Executive. In the event of termination of the Executive's employment with the
Company for any reason, the Executive consents to the Company communicating with
the Executive's new employer, any entity in the Business or through or in
connection with which the Executive is restricted hereunder, or any other party
about the restrictions and obligations imposed on the Executive under this
Agreement.
Article 7: GENERAL PROVISIONS
7.01 Injunctive Relief and Additional Remedy. The Executive
acknowledges that the injury that would be suffered by the Company as a result
of a breach of the provisions of Articles 5 and 6 hereof might be irreparable
and that an award of monetary damages to the Company for such a breach would be
an inadequate remedy. Consequently, the Company will have the right, in addition
to any other rights it may have, to obtain injunctive relief to restrain any
breach or threatened breach or otherwise to specifically enforce the provisions
of Articles 5 and 6 hereof.
7.02 Covenants of Articles 5 and 6 are Essential and Independent
Covenants. The covenants by the Executive in Articles 5 and 6 are essential
elements of this Agreement, and without the Executive's agreement to comply with
such covenants, the Company would not have entered into this Agreement or
employed or continued the employment of the Executive. The Company and the
Executive have independently consulted their respective counsel and have been
advised in all respects concerning the reasonableness and propriety of such
covenants, with specific regard to the nature of the business conducted by the
Company. If the Executive's employment hereunder expires or is terminated, this
Agreement will continue in full force and effect as is necessary or appropriate
to enforce the covenants and agreements of the Executive in Articles 5 and 6.
7.03 Representations and Warranties by the Executive. The Executive
represents and warrants to the Company that (a) the Executive has never taken
any action of the types set forth in Section 4.03(b) though (f) and (b) the
execution and delivery by the Executive of this Agreement does not, and the
performance by the Executive of the Executive's obligations hereunder will not,
with or without the giving of notice or the passage of time, or both: (i)
violate any judgment, writ, injunction, or order of any court, arbitrator, or
governmental agency applicable to the Executive; or (ii) conflict with, result
in the breach of any provisions of or the termination of, or constitute a
default under, any agreement to which the Executive is a party or by which the
Executive is or may be bound.
7.04 Obligations Contingent on Performance. The obligations of the
Company hereunder, including its obligation to pay the compensation provided for
herein, are contingent upon the Executive's performance of the Executive's
obligations hereunder.
7.05 Binding Effect; Delegation of Duties Prohibited. This Agreement
shall inure to the benefit of, and shall be binding upon, the parties hereto and
their respective successors, assigns, heirs,
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and legal representatives, including any entity with which the Company may merge
or consolidate or to which all or substantially all of its assets may be
transferred. The covenants of the Executive under this Agreement, being
personal, may not be delegated.
7.06 Notices. All notices, consents, waivers, and other communications
under this Agreement must be in writing and will be deemed to have been duly
given when (a) delivered by hand (with written confirmation of receipt), (b)
sent by facsimile (with written confirmation of receipt), provided that a copy
is mailed by registered mail, return receipt requested, or (c) when received by
the addressee, if sent by a nationally recognized overnight delivery service
(receipt requested) or, (d) mailed by registered or certified mail, postage
prepaid and return receipt requested, in each case to the appropriate addresses
and facsimile numbers set forth below (or to such other addresses and facsimile
numbers as a party may designate by notice to the other parties):
If to the Company: Nextgen Communications Corporation
Attn: Chief Executive Officer
00000 Xxxxx Xxxx
Xxxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
With a copy to: Fish & Xxxxxxxxxx P.C.
5000 Bank One Center
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attn: J. Xxxx Xxxxx, Esq.
Facsimile: (000) 000-0000
If to the Executive: R. Xxxxxx Xxxxx
0000 Xxxxx
Xxxxxxx, XX 00000
Facsimile: (___)___-
With a copy to: Xxxxx Xxxxxxx
Crady, Jewett, & XxXxxxxx L.L.P.
0000 Xxxxx Xxxx, Xxx 0000
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
7.07 Entire Agreement; Amendments. This Agreement contains the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior agreements and understandings, oral or written, between the
parties hereto with respect to the subject matter hereof. This Agreement may not
be amended orally; but only by an agreement in writing signed by the parties
hereto.
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7.08 GOVERNING LAW; VENUE. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS WITHOUT GIVING
EFFECT TO THE CONFLICT OF LAWS RULES OR CHOICE OF LAWS RULES THEREOF. VENUE FOR
ANY ACTION BROUGHT HEREUNDER SHALL BE PROPER EXCLUSIVELY IN XXXXXX COUNTY,
TEXAS.
7.09 Headings; Construction. The headings in this Agreement are
provided for convenience only and will not affect its construction or
interpretation. All references to "Article," "Articles," "Section," or
"Sections" refer to the corresponding Article, Articles, Section, or Sections of
this Agreement unless otherwise specified. All words used in this Agreement will
be construed to be of such gender or number as the circumstances require.
7.10 Severability. If any provision of this Agreement is held invalid
or unenforceable by an arbitrator or any court of competent jurisdiction, the
other provisions of this Agreement will remain in full force and effect. Any
provision of this Agreement held invalid or unenforceable only in part or degree
will remain in full force and effect to the extent not held invalid or
unenforceable.
7.11 Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to constitute
one and the same agreement.
7.12 Survival of Obligations. The obligations of the Company and the
Executive under this Agreement which by their nature may require either partial
or total performance after the expiration of the Term shall survive such
expiration.
7.13 Withholding and Set Off. All payments and benefits made or
provided under this Agreement shall be subject to withholding as required under
applicable law. The Company is further authorized to withhold and setoff against
any such payments and benefits any amounts that the Executive may come to owe
the Company, whether as a result of any breach of this Agreement or otherwise.
Article 8: CERTAIN DEFINITIONS
For purposes of this Agreement, the following terms shall have the
meanings indicated below:
"AFFILIATE" shall mean, as to any Person, any Person controlled by,
controlling, or under common control with such Person, and, in the case of a
Person who is an individual, a member of the family of such individual
consisting of a spouse, sibling, in-law, lineal descendant, or ancestor
(including by adoption), and the spouses of any such individuals. For purposes
of this definition, "control" (including the terms "controlling", "controlled
by" and "under common control with") of a Person means the possession, directly
or indirectly, alone or in concert with others, of the power to direct or cause
the direction of the management and policies of such Person, whether through the
ownership of securities, by contract or otherwise, and no Person shall be deemed
in control of another solely by virtue of being a director, officer or holder of
voting securities of any entity. A Person shall be presumed to control any
partnership of which such Person is a general partner.
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"CURRENT CUSTOMER" shall mean any Person who is currently utilizing any
product or service sold or provided by the Company through the facility managed
by the Executive; any Person who utilized any such product or service within the
previous 12 months; and any Person with whom the Company or any of its
Affiliates is currently conducting negotiations concerning the utilization of
such products or services.
"EMPLOYMENT PERIOD" shall mean the period during which the Executive
has an obligation to render to the Company all or any portion of the services
described in Section 1.03 of this Agreement. The Employment Period shall in no
event, however, extend past the Expiration Date.
"PERSON" shall have the meaning given in Section 3(a)(9) of the
Securities Exchange Act of 1934, as amended, as modified and used in Sections
13(d)(3) and 14(d)(2) of such act.
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IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first written above.
COMPANY:
NEXTGEN COMMUNICATIONS
CORPORATION
By:
-------------------------------------
Xxxxx X. Xxxxxxxx
President and Chief Executive Officer
EXECUTIVE:
-----------------------------------------
R. Xxxxxx Xxxxx
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