SKYLYNX COMMUNICATIONS, INC.
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement") is made
this 23rd day of August 1999 between SKYLYNX COMMUNICATIONS, INC., a Colorado
corporation (the "Company") and XXXXX X. XXXXXX ("Xxxxxx").
W I T N E S S E T H:
WHEREAS, the parties entered into that certain employment agreement on
the 23rd day of December, 1998 and wish to amend certain provisions and
restate the remaining provisions of such agreement to accurately reflect the
understanding of the parties hereto; and
WHEREAS, it is intended that this Agreement will supercede such prior
agreement and that the provisions of this Agreement be deemed in effect as of
December 23, 1998;
NOW, THEREFORE, in consideration of the premises and of the mutual,
promises, covenants and representations herein contained, the parties hereto
agree as follows:
1. Term. The Company will employ Xxxxxx, and Xxxxxx will serve the
Company, under the terms of this Agreement for an initial term ending December
31, 2000 (the "Initial Term"), commencing as of December 23, 1998 (the
"Effective Date"). Effective as of the expiration of the Initial Term and as
of each anniversary date thereof, the term of this Agreement shall be extended
for an additional one-year period unless, not later than two months prior to
each such respective date, either party hereto shall have given notice to the
other than the term shall not be so extended. Notwithstanding the foregoing,
Xxxxxx'x employment hereunder may be earlier terminated, as provided in
Section 4 hereof. The term of this Agreement, as in effect from time to time
in accordance with the foregoing, shall be referred to herein as the "Term".
The period of time between the Effective Date and the termination of Xxxxxx'x
employment hereunder shall be referred to herein as the "Employment Period".
2. Employment. The Company hereby employs Xxxxxx as Chief Financial
Officer of the Company upon the terms and conditions herein set forth. Xxxxxx
shall exercise such authority, perform such duties and functions and discharge
such responsibilities as are reasonably associated with Xxxxxx'x position,
commensurate with the authority vested in Xxxxxx pursuant to this Agreement
and consistent with the bylaws of the Company. In connection with performance
of his duties, Xxxxxx shall report directly to the Chief Executive Officer of
the Company. During the Employment Period, Xxxxxx shall devote full business
time, skill and efforts to the business of the Company. Notwithstanding the
foregoing, Xxxxxx may (i) make and manage personal business investments of his
choice and serve in any capacity with any civic, educational or charitable
organization, or any trade association, without seeking or obtaining approval
by the Board, provided such activities and service do not materially interfere
or conflict with the performance of his duties hereunder and (ii) with the
approval of the Board, serve on the boards of directors of other corporations.
The Company shall provide Xxxxxx, incident to the performance of such duties,
with office space, facilities and secretarial assistance commensurate with his
position. Xxxxxx shall principally perform his duties for the Company in at
the corporate headquarters to be located in Denver, Colorado, or at such
location as the Board may determine in consultation with Xxxxxx and with his
express consent.
3. Compensation and Benefits.
(a) Base Salary. During the Employment Period, the Company shall
pay to Xxxxxx, as compensation for the performance of his duties and
obligations under this Agreement, a base salary at the rate of $120,000 per
annum, payable in arrears not less frequently than twice monthly in accordance
with the normal payroll practices of the Company (the "Base Salary"). The
Compensation Committee shall increase Xxxxxx'x Base Salary annually, at a rate
of not less than ten percent (10%) per year.
In the event the Company completes an initial or secondary public
offering of its common stock, Xxxxxx'x Base Salary shall be immediately
increased to an amount to be determined by the Compensation Committee of the
Board. Under no set of circumstances shall Xxxxxx'x Base Salary be decreased
at any time.
(b) Bonuses. The Company agrees to pay Xxxxxx an annual cash bonus,
on or about March 31st of each year for his efforts in the prior calendar
year. The amount of such bonus shall be determined by the Compensation
Committee of the Board.
(c) Advance Incentives. The parties hereto acknowledge that the
Company has previously granted to Xxxxxx seventy five thousand (75,000) shares
of the Company's common stock. The Company agrees to register the shares
granted as an advance incentive with the Securities and Exchange Commission as
soon as practicable, but in no event later than when the Company files for its
Initial Public Offering or a Secondary offering, subject to the requirements
of the underwriter. The total number of shares the Company must register for
Xxxxxx shall be no more than the aggregate number of shares the Company is
otherwise registering. The Company shall bear all costs of registration
associated with such piggyback registration for Xxxxxx.
(d) Incentive Stock Options ("ISOs"). The Company has caused to be
established a qualified incentive stock option plan (the "ISO Plan") under
Section 422 of the Internal Revenue Code of 1986, as amended. Each year
during the Employment Period, Xxxxxx shall fully participate in the ISO Plan
and be granted a number of ISOs commensurate with his position in the Company.
The number of ISO's granted shall be calculated using the same formula used to
calculate the amount of ISOs granted other senior executives of the Company;
it being understood that as of the date of this Agreement, Xxxxxx has been
previously granted by the Company's board of directors, incentive stock
options to purchase a total of one hundred thirty thousand four hundred thirty
four (130,434) shares of the Company's common stock.
(e) Non-Qualified Stock Options ("NSOs"). The Company has caused
to be established a Non-qualified Stock Option plan (the "Equity Incentive
Plan") that is not intended to qualify as an "incentive stock option" under
Section 422 of the Internal Revenue Code of 1986, as amended. The Company's
board of directors has previously granted Xxxxxx NSOs to purchase a total of
seven hundred sixteen thousand five hundred sixty-six (716,566) shares of the
Company's common stock on substantially the terms and conditions set forth in
the attached form of Stock Option Agreement, attached hereto as Exhibit A.
Concurrently with the execution of this Agreement, the Company and Xxxxxx will
enter into a Stock Option Agreement, substantially in the form attached hereto
as Exhibit A, pursuant to which Xxxxxx shall have an option to purchase seven
hundred sixteen thousand five hundred sixty six (716,566) share of common
stock of the Company on the terms and conditions set forth therein.
(f) Accelerated Vesting. The parties agree that all of Xxxxxx'x
Incentive Stock Options and Non-qualified Stock Options shall immediately
vest, regardless of the performance criteria, in the event of: (i) a Change
in Control of the Company as defined in Section 4(e) herein; or (ii) in the
event of a termination of employment of Xxxxxxx Xxxxxxx as the Company's Chief
Executive Officer.
(g) Equity Catch-Up or Claw-Back. Notwithstanding anything
contained herein to the contrary, the parties agree that, upon the completion
of an initial or secondary public offering of the Company's Common Stock, the
sum of (i) the number of shares of Common Stock granted to Xxxxxx according to
Section 3(c), plus (ii) the number of shares of Common Stock represented by
Incentive Stock Options granted to Xxxxxx according to Section 3(d), plus
(iii) the number of shares of Common Stock represented by Non-Qualified Stock
Options granted to Xxxxxx according to Section 4(e) shall represent an equity
interest in the Company equal to four percent (4%) of the Company's issued and
outstanding Common Stock on a fully diluted basis. To the extent that Xxxxxx'x
equity interest at such time is less than or greater than four percent (4%),
the Company and/or the Company's Compensation Committee shall either increase
or decrease the number of Non-Qualified Stock Options granted to Xxxxxx
(through the grant of additional Non-Qualified Stock Options to Xxxxxx or
through the cancellation of Non-Qualified Stock Options held by Xxxxxx) so
that Xxxxxx'x equity interest at such time is equal to four percent (4%) of
the Company's issued and outstanding Common Stock on a fully diluted basis.
(h) Benefits. During the Employment Period, Xxxxxx shall receive
such life insurance, disability, pension, health insurance, holiday, and sick
pay benefits and other benefits which the Company extends, as a matter of
policy, to its executives and, except as otherwise provided herein, shall be
entitled to participate in all deferred compensation and other incentive plans
of the Company on the same basis as other like executives of the Company.
(i) Vacation. Xxxxxx shall be entitled to four (4) weeks of
vacation each year with full compensation. Xxxxxx agrees to schedule his
vacation in a way that least interferes with the Company's business.
(j) Expenses. Xxxxxx shall be reimbursed for his reasonable
expenses, commensurate with his position and related to the carrying out of
his duties, including expenses for entertainment, travel and similar items.
The Company shall reimburse Xxxxxx for such expenses in a timely manner and in
accordance with the policies and procedures of the Company in effect from time
to time.
(k) Perquisites. During the Term of this Agreement, Xxxxxx shall
be entitled to perquisites and fringe benefits that are accorded senior
executives of the Company. Such perquisites shall include an automobile
allowance of Five Hundred Dollars ($500) per month, reimbursement for medical
expenses which may otherwise be uninsured or unreimbursed under the Company's
medical plan for Xxxxxx and his dependents, payment for all premiums for
Xxxxxx and his dependents under its medical insurance plans, and payment for
all premiums for Xxxxxx under its life and disability insurance plans. The
Company shall also waive any applicable waiting periods for such benefits, if
any.
(l) Cumulative Compensation. The compensation provided for in
Sections 3(a) - (k) herein are in addition to the benefits provided for upon
termination pursuant to Section 5 herein.
4. Termination of Employment.
(a) Termination for Cause. The Company may terminate Xxxxxx'x
employment hereunder for cause. For purposes of this Agreement and subject to
Xxxxxx'x opportunity to cure as provided in Section 4(c) hereof, the Company
shall have "cause" to terminate Xxxxxx'x employment hereunder if Xxxxxx shall
commit any of the following:
(i) any act or omission which shall represent a material
breach in any material respect of any of the terms of this Agreement;
(ii) gross misconduct that, in the reasonable good faith
opinion of the Company that is or is likely to be significantly injurious to
the Company;
(iii) gross negligence or wanton and reckless acts or omissions
in the performance of Xxxxxx'x duties, in any such case which are
significantly injurious to the Company;
(iv) bad faith in the performance of Xxxxxx'x duties,
consisting of willful acts or omissions, which are significantly injurious to
the Company;
(v) addiction to illegal drugs or chronic alcoholism; or
(vi) any conviction or pleading of guilty to a crime that
constitutes a felony under the laws of the United States or any political
subdivision thereof.
(b) Termination with Adequate Reason. Xxxxxx shall have the right
at any time to terminate his employment with the Company with adequate reason.
For purposes of this Agreement and subject to the Company's opportunity to
cure as provided in Section 4(c) hereof, Xxxxxx shall have adequate reason to
terminate his employment hereunder if such termination shall be the result of:
(i) a diminution during the Employment Period in Xxxxxx'x
title, duties or responsibilities as set forth in Section 2 hereof;
(ii) a breach by the Company of the compensation and benefits
provisions set forth in Section 3 hereof; or
(iii) any action of the Company to which Xxxxxx does not consent
which would require Xxxxxx to change his present place of residence; or
(iv) a material breach by the Company of any material terms of
this Agreement.
(c) Notice and Opportunity to Cure. Notwithstanding the foregoing,
it shall be a condition precedent to the Company's right to terminate Xxxxxx'x
employment for "cause" and Xxxxxx'x right to terminate his employment for
"good reason" that (1) the party seeking the termination shall first have
given the other party written notice stating with specificity the reason for
the termination ("breach") and (2) if such breach is susceptible of cure or
remedy, a period of thirty (30) days from and after the giving of such notice
shall have elapsed without the breaching party having effectively cured or
remedied such breach during such 30-day period, unless such breach cannot be
cured or remedied within thirty (30) days, in which case the period for remedy
or cure shall be extended for a reasonable time (not to exceed thirty (30)
days) provided the breaching party has made and continues to make a diligent
effort to effect such remedy or cure.
(d) Termination Upon Death or Permanent and Total Disability. The
Employment Period shall be terminated by the death of Xxxxxx. The Employment
Period may be terminated by the Company if Xxxxxx shall be rendered incapable
of performing his duties to the Company by reason of any medically determined
physical or mental impairment that reasonably can be expected to result in
death or that can be expected to last for a period of six (6) or more
consecutive months from the first date of the disability ("Disability"). In
the event of a dispute as to whether Xxxxxx is mentally impaired within the
meaning of this Section 4(d), or as to the likely duration of any incapacity
of Xxxxxx either party may request a medical examination of Xxxxxx by a doctor
appointed by the Chief of Staff of a hospital selected by mutual agreement of
the parties, or as the parties may otherwise agree, and the cost of such
written medical opinion of such doctor shall be borne by the Company. If the
Employment Period is terminated by reason of Disability of Xxxxxx, the Company
shall give thirty (30) days' advance written notice to that effect to Xxxxxx.
(e) Change in Control. A "Change in Control" shall be deemed to
have occurred if and when (i) any "person" (as such term is used in Sections
13(d) and 14(d)(2) of the Securities and Exchange Act of 1934, as amended) who
does not own fifty percent (50%) or more of the combined voting power of the
Company's then issued and outstanding securities is or becomes a beneficial
owner, directly or indirectly, of securities of the Company representing fifty
percent (50%) or more of the combined voting power of the Company's then
issued and outstanding voting securities; (ii) the Company sells all or
substantially all of the assets of the Company; (iii) a merger is effected
whereby the Company is not the surviving entity after the merger (except in
the instance where the sole purpose of the merger is to effect a change in
domicile of the Company from one state to another); or (iv) a majority of the
individuals who were members of the Board of Directors of the Company
immediately prior to an action or series of actions, do not constitute a
majority of the Board of Directors following such action or series of actions.
In the event of a Change in Control, if Xxxxxx and the new controlling entity
do not agree to continue with the terms of this Agreement, then this Agreement
shall be terminated and the Company shall pay Xxxxxx the liquidated damages
defined in Section 5(a) below.
5. Consequences of Termination.
(a) Termination Without Cause or for Adequate Reason or Change of
Control. In the event of termination of Xxxxxx'x employment hereunder: (1)
by the Company without "cause" (other than upon death or Disability); (2) by
Xxxxxx for "adequate reason"; or (3) termination effected after or upon a
Change of Control (each as defined in Section 4 hereof), in addition to any
other benefits and payments as may be required by law or otherwise accrued as
of such termination date by Xxxxxx, Xxxxxx shall be entitled to the following
severance pay and benefits:
(i) Severance Pay - a lump sum amount equal to one half (1/2)
of Xxxxxx'x then annual Base Salary;
(ii) Benefits Continuation - continuation for six (6) months
(the "Severance Period") of coverage under the group medical care, disability
and life insurance benefit plans or arrangements in which Xxxxxx is
participating at the time of termination with the Company continuing to pay
its share of premiums and associated costs as if Xxxxxx continued in the
employ of the Company; provided, however, that the Company's obligation to
provide such coverages shall be terminated if Xxxxxx obtains comparable
substitute coverage from another employer at any time during the Severance
Period. Xxxxxx shall be entitled, at the expiration of the Severance Period,
to elect continued medical coverage in accordance with Section 4980B of the
Internal Revenue Code of 1986, as amended (or any successor provision
thereto); and
(iii) Pro Rata Bonus Amounts - a lump sum amount equal to the
pro rata portion of any bonus amounts paid by the Company in the prior year as
bonuses.
(b) Termination Upon Disability. In the event of termination of
Xxxxxx'x employment hereunder by the Company on account of Disability, Xxxxxx
shall be entitled to the following severance pay and benefits:
(i) Severance Pay - severance payments in the form of
continuation of Xxxxxx'x Base Salary as in effect immediately prior to such
termination for a period of six (6) months following the first date of
Disability; and
(ii) Benefits Continuation - the same benefits as provided in
Section 5(a)(ii) above, to be provided during the Employment Period while
Xxxxxx is suffering from Disability and for a period of three (3) months
following the effective date of Xxxxxx'x termination by reason of Disability.
(c) Termination Upon Death. In the event of termination of
Xxxxxx'x employment hereunder on account of Xxxxxx'x death, Xxxxxx'x heirs,
estate or personal representatives under law, as applicable, shall be entitled
to the payment of Xxxxxx'x Base Salary as in effect immediately prior to death
for a period of not less than two (2) calendar months and not more than the
earlier of six (6) calendar months or the payment of benefits pursuant to
Xxxxxx'x life insurance policy, as provided for in Section 3(h) above.
Xxxxxx'x beneficiary or estate shall not be required to remit to the Company
any payments received pursuant to any life insurance policy purchased pursuant
to Section 3(h) above.
(d) Accrued Rights. Notwithstanding the foregoing provisions of
this Section 5, in the event of termination of Xxxxxx'x employment hereunder
for any reason, Xxxxxx shall be entitled to payment of any unpaid portion of
his Base Salary through the effective date of termination, accrued by unpaid
vacation or benefits otherwise agreed to by the Company, and payment of any
accrued but unpaid rights solely in accordance with the terms of any incentive
bonus or employee benefit plan or program of the Company.
(e) Conditions to Severance Benefits.
(i) The Company shall have the right to seek repayment of the
severance payments and benefits provided by this Section 5 in the event that
Xxxxxx fails to honor in accordance with their terms the provisions of Section
6 hereof.
(ii) For purposes only of this Section 5(e), Xxxxxx shall be
treated as having failed to honor the provisions of Sections 6 hereof only
upon the vote of two-thirds of the Board following notice of the alleged
failure by the Company to Xxxxxx, an opportunity for Xxxxxx to cure the
alleged failure for a period of thirty (30) days from the date of such notice
and Xxxxxx'x opportunity to be heard on the issue by the Board.
(f) Registration and/or Buyback of Securities. No later than
ninety (90) days following termination of this Agreement by Company without
cause (as described in Section 4(a)) or by Xxxxxx with adequate reason (as
described in Section 4(b)), the Company shall cause to be prepared and filed
at its sole cost and expense registration documents with the Securities and
Exchange Commission for the purpose of registering for sale under the
Securities Act of 1933, as amended, all shares of the Company's common stock
owned by Xxxxxx or purchasable by Xxxxxx upon exercise of outstanding
Incentive Stock Options and Non-Qualified Stock Options that are vested as of
the date of termination. In connection with such registration, the Company
shall do the following: (i) attempt to cause such registration to be declared
effective by the Securities and Exchange Commission within one hundred twenty
(120) days of the date of termination, (ii) if successful in (i) above,
maintain the effectiveness of such registration for a minimum period of one
hundred eighty (180) days, and (iii) qualify the sale of all shares of the
Company's common stock owned by Xxxxxx or purchasable by Xxxxxx upon exercise
of his outstanding, vested Incentive Stock Options and Non-Qualified Stock
Options in such states and under such Blue Sky regulations as Xxxxxx may
reasonably request. In the event said registration fails to become effective,
Xxxxxx shall be permitted to sell in accordance with the provisions of Rule
144 and the remaining shares shall be registered in accordance with Section
3(c) above.
6. Confidential Information and Covenant Not to Compete. All payments
and benefits to Xxxxxx shall be subject to Xxxxxx'x compliance with this
Agreement and the provisions of this Section 6. However, Xxxxxx'x covenants
contained in this Section 6 shall terminate and shall be unenforceable and of
no further legal force or effect in the event the Company, its successors or
assigns, becomes insolvent, is liquidated or ceases for any reason to conduct
business operations for a continuous period of at least thirty (30) days.
(a) Confidentiality. Xxxxxx agrees that he will not at any time
during the Employment Period or for a period of two (2) year following
employment with the Company, for any reason, in any fashion, form or manner,
either directly or indirectly, divulge, disclose or communicate to any person,
firm, corporation or other business entity, in any manner whatsoever, any
confidential information or trade secrets concerning the business of the
Company, including, without limiting the generality of the foregoing, the
techniques, methods or systems of its operation or management, any information
regarding its financial matters, or any other material information concerning
the business of the Company (including customer lists), its manner of
operation, its plans or other material data (the "Business"). The provisions
of Section 6(a) shall not apply to (i) information disclosed in the
performance of Xxxxxx'x duties to the Company based on his good faith belief
that such a disclosure is in the best interests of Company; (ii) information
that is, at the time of the disclosure, public knowledge; (iii) information
disseminated by the Company to third parties in the ordinary course of
business; (iv) information lawfully received by Maurer from a third party who,
based upon inquiry by Maurer, is not bound by a confidential relationship to
the Company; or (v) information disclosed under a requirement of law or as
directed by applicable legal authority having jurisdiction over Xxxxxx.
(b) Litigation Support. During the Term of this Agreement, Xxxxxx
shall, upon reasonable notice, furnish such information and proper assistance
to the Company as may reasonably be required in connection with any litigation
in which the Company or any of its subsidiaries is, or may become, a party.
Except for litigation that may be between the Company and Xxxxxx, Xxxxxx'x
reasonable expenses (including, but not limited to, travel and attorneys'
fees) incurred in complying with this covenant shall be either advanced or
promptly reimbursed by Company to Xxxxxx.
(c) No Solicitation of Employees. Xxxxxx agrees that during the
Term of this Agreement and continuing for a period of one (1) year after
termination under Section 4 herein, neither Xxxxxx nor any person or
enterprise controlled by Maurer, will solicit for employment any person
employed by the Company.
(d) Covenant Not to Compete. Xxxxxx agrees that he shall not
during the Employment Period, without the approval of the Board, directly or
indirectly, alone or as partner, joint venturer, officer, director, employee,
consultant, agent, independent contractor, guarantor, financier, consultant,
option holder or stockholder (other than as provided below) of any company or
business, participate in, engage in or have a financial interest in any
"Competitive Business" within the United States. For purposes of the
foregoing, the term "Competitive Business" shall mean any business, firm,
corporation or other business entity related to the provision of Internet
access or Internet related services and any business directly competing with
any product or service of SkyLynx Communications, Inc. or any affiliate
thereof. Notwithstanding the foregoing, Maurer shall not be prohibited during
the noncompetition period applicable above from acting as a passive investor
where she owns not more than five percent (5%) of the issued and outstanding
capital stock of any publicly-held company.
7. Breach of Restrictive Covenants. The parties agree that a breach or
violation of Section 6 hereof will result in immediate and irreparable injury
and harm to the innocent party, and that such innocent party shall have, in
addition to any and all remedies of law and other consequences under this
Agreement, the right to seek an injunction, specific performance or other
equitable relief to prevent the violation of the obligations hereunder.
8. Indemnification and Duty to Defend.
(a) Indemnification. Except for litigation between the Company and
Xxxxxx, the Company agrees to indemnify Xxxxxx to the fullest extent against
any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative in which he is made party or
is threatened to be made a party by reason of his having been an officer or
director of the Company or any of its subsidiaries or affiliates, or for
actions taken purportedly on behalf of the Company or any of its subsidiaries
or affiliates. Indemnification shall include, but is not limited to: expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by Maurer as long as Xxxxxx acted in good
faith and in a manner he reasonably believed to be in the best interests of
the Company, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe that his conduct was unlawful. Indemnification
shall extend to all matters that relate to Xxxxxx'x association with the
Company beginning on the Effective Date of this Agreement, and such
indemnification shall survive the termination of this Agreement, regardless of
the reason for termination.
(b) Duty to Defend. Except for litigation between the Company and
Xxxxxx, the Company will provide Xxxxxx with a legal defense with counsel of
his choosing against any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative in which
he is made party or is threatened to be made a party by reason of his having
been an officer or director of the Company or any of its subsidiaries or
affiliates, for action taken purportedly on behalf of the Company or any of
its subsidiaries or affiliates. No settlement shall be entered into with
respect to litigation pursuant to this Section 8(b) without the express
written approval of Xxxxxx. Additionally, upon request by Xxxxxx, the Company
will promptly advance or pay any amounts for costs, charges, or expenses in
respect to his right to a defense and indemnification hereunder. This duty to
defend shall extend to all matters that relate to Xxxxxx'x affiliation with
the Company beginning from December 23, 1998, and such duty shall survive the
termination of this Agreement.
9. Notice. For the purposes of this Agreement, notices, demands and
all other communications provided for in this Agreement shall be in writing
and shall be deemed to have been duly given when delivered or (unless
otherwise specified) mailed by United States certified or registered mail,
return receipt requested, postage prepaid, addressed as follows:
If to the Company, to: If to Xxxxxx, to:
Chairman of the Board Xxxxx X. Xxxxxx
SkyLynx Communications, Inc. 0000 X. Xxxxxxxx Xx., #000
000 Xxxxx Xxxxxx Xxxxxx Xxxxxx, Xxxxxxxx 00000
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
or to such other respective addresses as the parties hereto shall designate to
the other by like notice, provided that notice of a change of address shall be
effective only upon receipt thereof.
10. Waiver of Breach. Any waiver of any breach of this Agreement shall
not be construed to be a continuing waiver or consent to any subsequent breach
on the part either of Xxxxxx or of the Company.
11. Non-Assignment: Successors. Neither party hereto may assign his or
its rights or delegate his or its duties under this Agreement without the
prior written consent of the other party; provided, however, that: (i) this
Agreement shall inure to the benefit of and be binding upon the successors and
assigns of the Company upon any sale of all or substantially all of the
Company's assets, or upon any merger, consolidation or reorganization of the
Company with or into any other corporation, all as though such successors and
assigns of the company and their respective successors and assigns were the
Company; and (ii) this Agreement shall inure to the benefit of and be binding
upon the heirs, assigns or designees of Xxxxxx to the extent of any payments
due to them hereunder. As used in this Agreement, the term "Company" shall be
deemed to refer to any such successor or assign of the Company referred to in
the preceding sentence.
12. Withholding of Taxes. All payments required to be made by the
Company to Xxxxxx under this Agreement shall be subject to the withholding of
such amounts, if any, relating to tax, and other payroll deductions as the
Company may reasonably determine it should withhold pursuant to any applicable
law or regulation.
13. Severability. To the extent any provision of this Agreement or
portion thereof shall be invalid or unenforceable, it shall be considered
deleted there from and the remainder of such provision and of this agreement
shall be unaffected and shall continue in full force and effect.
14. Payment. All amounts payable by the Company to Xxxxxx under this
Agreement shall be paid promptly on the dates required for such payment in
this Agreement without notice or demand. Any salary, benefits or other
amounts paid or to be paid to Xxxxxx or provided to or in respect of Xxxxxx
pursuant to this Agreement shall not be reduced by amounts owing from Xxxxxx
to the Company.
15. Authority. Each of the parties hereto hereby represents that each
has taken all actions necessary in order to execute and deliver this Agreement
and the Stock Option Agreement attached hereto as Exhibit A.
16. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
17. Governing Law. This Agreement shall be construed, interpreted and
enforced in accordance with the laws of the State of Colorado, without giving
effect to the choice of law principles thereof.
18. Entire Agreement. This Agreement, the attached Stock Option
Agreements and the Plan as defined in the Stock Option Agreements constitute
the entire agreement by the Company and Xxxxxx with respect to the subject
matter hereof and supersedes any and all prior agreements or understandings
between Xxxxxx and the Company with respect to the subject matter hereof,
whether written or oral. This Agreement may be amended or modified only by a
written instrument executed by Xxxxxx and the Company.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and month first above-written.
SKYLYNX COMMUNICATIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------
Xxxxxxx X. Xxxxxxx
Chief Executive Officer
/s/ Xxxxx X. Xxxxxx
-------------------------------
Xxxxx X. Xxxxxx
EXHIBIT "A"
AMENDED AND RESTATED
STOCK OPTION AGREEMENT
SkyLynx Communications, Inc.
Stock Options
This AMENDED AND RESTATED STOCK OPTION AGREEMENT (the "Agreement") dated
as of the 23rd day of August, 1999 is intended to amend certain terms and
restate the remaining provisions of an Agreement entered into on the 23rd of
December 1998 (the "Date of Grant"), between SkyLynx Communications, Inc., a
Colorado corporation (the "Company") and Xxxxx X. Xxxxxx (the "Optionee").
Pursuant to any authorized stock option plan of the Company or any other
appropriate and lawful method (collectively, the "Plan"), the Company has
authorized the execution and delivery of this Agreement. A copy of the Plan
as in effect on the Date of Grant has been supplied to the Optionee and the
Optionee hereby acknowledges receipt thereof. The provisions of the Plan,
including the definitions of capitalized terms that are not otherwise defined
in this Agreement, are incorporated herein by reference.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set
forth and for other good and valuable consideration, the parties hereto agree
as follows:
1. Grant of Option. Subject to all the terms and conditions of the
Plan and this Agreement, the Company grants to the Optionee as of the date of
grant an option (the "Option") to purchase seven hundred sixteen thousand five
hundred sixty six (716,566) shares of common stock, par value $.001, of the
Company ("Common Stock"). The Option is not intended to qualify as an
"incentive stock option" under Section 422 of the Internal Revenue Code of
1986, as amended (the "Code"), and shall be treated as a non-qualified stock
option under the Plan.
2. Exercise Price. The exercise price per share of Common Stock
covered by this Option (the "Option Price") shall be $1.94.
3. Vesting. The Optionee's right to purchase shares of the Company's
Common Stock under the Option shall vest according to the following
milestones:
a. When the Company achieves certain performance based milestones
as detailed in the Performance Criteria ("Performance
Criteria") set forth on Schedule 3(a) hereto; or
b. In any event, upon the tenth (10th) anniversary of the grant of
the options all options that are not then vested will
immediately vest.
4. Term. The term of the Option (the "Option Term") shall commence on
the Date of Grant and shall expire on the tenth anniversary thereof unless the
Option shall have been earlier terminated in accordance with the terms hereof
or of the Plan. Shares of Common Stock as to which the Option becomes
exercisable pursuant to Section 3 hereof may be purchased at any time during
the Option Term.
5. Termination of Option. The unexercised portion of the Option shall
automatically terminate and shall become null and void and be of no further
force or effect upon the expiration of the Option Term.
6. Notices. All notices or other communications which are required or
permitted hereunder shall be deemed sufficient if contained in a written
instrument given by personal delivery, telex, telecopier, telegram, air
courier or registered or certified mail, postage prepaid, return receipt
requested, addressed to such party at the address set forth below or such
other address as may thereafter be designated in a written notice from such
party to the other party.
If to the Company: Attn: Chief Executive Officer
SkyLynx Communications, Inc.
000 Xxxxx Xxxxxx Xxxxxx - Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
If to Xxxxxx, to: Xxxxx X. Xxxxxx
0000 X. Xxxxxxxx Xx., #000
Xxxxxx, Xxxxxxxx 00000
All such notices, advances and communications shall be deemed to have
been delivered and received (i) in the case of personal delivery, on the date
of such delivery, (ii) in the case of telecopier, upon receipt of machine
confirmation and (iii) in the case of mailing, on the third business day
following such mailing.
7. No Waiver. No waiver of any breach or condition of this Agreement
shall be deemed to be a waiver of any other or subsequent breach or condition,
whether of like or different nature.
8. Optionee Undertaking. The Optionee shall take whatever additional
actions and execute whatever additional documents the Company or the Committee
may in its reasonable judgment deem necessary or advisable in order to carry
out or effect one or more of the obligations or restrictions imposed on the
Optionee pursuant to the express provisions of this Agreement.
9. Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Colorado, excluding the choice of
law rules thereof.
10. Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above-written.
SKYLYNX COMMUNICATIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------
Xxxxxxx X. Xxxxxxx
Chief Executive Officer
/s/ Xxxxx X. Xxxxxx
---------------------------------
Xxxxx X. Xxxxxx
Schedule 3(a)
PERFORMANCE CRITERIA
The Optionee's right to purchase shares of the Company's Common Stock
under the Option shall vest immediately, subject to Section 3 hereof, pursuant
to the following schedule:
(1) Upon acquisition of the Company's twenty-fifth thousand (25,000)
subscriber, Xxxxxx shall vest in 191,108 stock options.
(2) Upon obtaining acceptable commitments to fund the Company for a
minimum $30,000,000, Maurer shall vest in 254,811 stock options. Such
commitments may consist of, but shall not be limited to, any combination of
the following:
(i) Initial or Secondary Public Offering;
(ii) Private Equity Placement;
(iii) High Yield Debt Offering;
(iv) Private Debt Placement;
(v) Public or Private Placement of Convertible Securities;
(vi) Joint Venture / Project Financing; and
(vii) Vendor Financing.
(3) Upon the acquisition of the Company's fifth (5th) Internet Service
Provider, Xxxxxx shall vest in 127,595 stock options.
(4) Upon obtaining annualized gross revenues of $15,000,000 for the
Company, (based upon last quarter revenues annualized), Xxxxxx shall vest in
another 143,052 stock options.
