EXHIBIT 10.5
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made effective as of the
27th day of June, 2001, by and between o2wireless Solutions, Inc., a Georgia
corporation (the "Company"), and Xxxxxx X. Xxxxxxx ("Employee").
WHEREAS, the Company desires to employ Employee and Employee desires to
accept employment with the Company under the terms and conditions set forth
herein; and
WHEREAS, the Company and Employee desire to set forth in writing all of
the covenants, terms and conditions of their agreement and understanding as to
such employment.
NOW THEREFORE, in consideration of the foregoing, the mutual promises
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, agree as follows:
1. EMPLOYMENT AND DUTIES. The Company hereby employs Employee,
and Employee hereby accepts employment, as President and Chief Executive Officer
of the Company. Employee shall also be responsible for such other managerial or
executive position(s) as agreed to in writing by the parties. Employee's
responsibilities will include management and development of all aspects of the
Company's business. Employee agrees to serve in such capacities and to
faithfully and diligently perform such duties, responsibilities and services
that are incidental thereto, as well as such other duties, responsibilities and
services as may be prescribed or requested by the Board of Directors of the
Company ("Board of Directors") from time to time. Employee shall devote his full
time, attention and best efforts to the performance of his duties,
responsibilities and services to the Company in a lawful manner and in
accordance with all policies and procedures of the Company and instructions from
the Board of Directors.
2. TERM. The term of this Agreement will commence on the date set
forth above and will terminate on June 27, 2004, unless said Agreement is
terminated at an earlier date as provided herein. The Agreement shall
automatically renew for successive one (1) year term(s) unless either party
notifies the other of its intention not to renew the Agreement at least 30 days
prior to the expiration of the term then in effect, in which event the Agreement
will terminate at the expiration of the term then in effect; provided, however,
that all post-termination rights and obligations hereunder shall survive
termination or expiration of this Agreement as provided herein.
3. COMPENSATION AND EMPLOYEE BENEFITS.
(a) Compensation. Employee shall receive an annualized
salary (the "Base Salary") of Three Hundred Twenty-Five Thousand Dollars
($325,000.00), which shall be paid in accordance with the Company's regular
payroll practices and subject to any and all withholdings pursuant to applicable
law. Employee's performance and salary shall be reviewed annually on or before
April 1 of each year and Employee will be entitled to such annual salary
increases as may be authorized by the Board of Directors, if any.
Employee is also eligible to receive additional annualized
incentive compensation targeted at one hundred percent (100%) of his Base Salary
per year, if the Company meets performance objectives recommended by the
Company's President and Chief Executive Officer and approved by its Board of
Directors. Such incentive compensation, if earned, will be payable annually
within 90 days after the end of the fiscal year as authorized by the Board of
Directors. For the year ending December 31, 2001, Employee's opportunity to
receive an incentive bonus will be based on the performance objectives contained
in the Company's Senior Management Bonus Plan attached hereto as Exhibit "A",
prorated based on Employee's time of service with the Company during the year
ending December 31, 2001.
(b) Stock Options. Pursuant and subject to the terms and
conditions of the Stock Option Agreement entered into between the Company and
Employee dated as of June 27, 2001 (the "Stock Option Agreement"), Employee has
received stock options to purchase up to Nine Hundred Seventy-Five Thousand
(975,000) shares of the common stock of the Company at an exercise price of
$2.00 per share (the "Stock Options"), in accordance with the terms and
conditions of the Stock Option Agreement attached hereto and incorporated herein
by reference as Exhibit "B". In the event Employee is employed with the Company
and a Change of Control occurs, all unvested Stock Options shall vest and become
exercisable in full on the day before the effective date of such Change of
Control, as more specifically described in the Stock Option Agreement. If
Employee is terminated by the Company without Cause within 60 days prior to the
occurrence of a Change of Control, all unvested Stock Options shall vest and
become exercisable on the date of such termination, as more specifically
described in the Stock Option Agreement.
(c) Employee/Fringe Benefits. Employee shall be eligible
to participate in all employee benefit programs and fringe benefits (including,
but not limited to, medical, dental, vision, life, accidental death and
dismemberment, travel, accident and short-term/long-term disability insurance
plans or programs, as may be in effect from time to time) as provided by the
Company to executive employees, subject to any and all terms, conditions, and
eligibility requirements for said programs and benefits, as may from time to
time be prescribed by the Company. The Company shall, at the option of the
Employee, either (i) pay Employee a $1,250.00 per month car allowance, or (ii)
provide a Company-pool car for Employee's business use. In the event that an
automobile is provided as set forth in (ii) above, the Company shall pay for all
insurance, taxes, tag fees, gasoline, repairs, maintenance, oil and lease
related charges associated with damages. Employee acknowledges and agrees that
the Company automobile allowance in (i) above represents a taxable fringe
benefit which the Company is obligated to include in the Employee's wages for
income and employment tax purposes.
(d) Other Business Expenses. Subject to Section 3(f)
herein, the Company shall reimburse Employee for his actual out-of-pocket,
business expenses that are incurred by Employee and are reasonable and necessary
in relation to and in furtherance of Employee's performance of his duties to the
Company. In addition, Employee shall be entitled to reimbursement for reasonable
and customary costs of maintaining memberships in professional and business
organizations which are reasonably related to the furtherance of Employee's
responsibilities as Chief Executive Officer of the Company. Such reimbursement
shall be subject
to compliance with the Company's reimbursement policies and the provision of
substantiating documents of said expenses as may be reasonably requested by the
Company.
(e) Vacation. Employee shall be entitled to twenty-one
(21) days Paid Time Off (PTO) per year for vacation and otherwise shall be
subject to the Company's normal vacation policy as it pertains to carryover of
vacation from one calendar year to another. Illness, other personal time away
from work, and holidays shall be allowed in accordance with the Company's normal
policies; provided, that vacation shall be taken at such times as shall not
unreasonably interfere with the Employee's responsibilities hereunder.
(f) Relocation Costs. During the initial period of
Employee's employment, which period shall not exceed twelve (12) months (the
"Initial Period"), Employee's principal place of residence shall continue to be
Chicago, Illinois. However, Employee shall be physically present in the
Company's principal offices in Atlanta, Georgia as required in order to devote
his full time to the performance of his duties under this Agreement. During the
Initial Period, Employee will be expected to travel extensively to familiarize
Employee with the Company's facilities and operations to fulfill his
responsibilities as Chief Executive Officer. Travel costs, including temporary
housing when the frequency of visits reasonably and economically dictates, will
be provided by the Company directly or will be reimbursed under the Company's
expense reimbursement programs. Costs of meals, other than in connection with
business related meetings, incurred while working in the Atlanta, Georgia area
will be paid by Employee. At the conclusion of the Initial Period, the Company
may require that Employee relocate to the metropolitan Atlanta area or to
another office location within the United States that is mutually acceptable to
the Company and Employee. Upon such relocation, the Company will reimburse
Employee for all reasonable and customary expenses related to Employee's
relocation, including brokerage fees related to the sale of Employee's existing
home and the purchase of a new home and the expenses of packing, transportation
and unpacking of Employee's household effects. To the extent such reimbursements
create taxable income for Employee which cannot be reasonably offset by Employee
with a corresponding tax deduction, the Company agrees to pay to Employee an
amount which will offset the effect of the resulting tax liability.
4. TERMINATION. Employee's employment may be terminated prior to
the expiration of the employment term as follows:
(a) Death or Disability. Employee's employment hereunder
shall terminate automatically upon Employee's death. In such event, Employee's
estate shall be entitled to receive any earned and unpaid Base Salary and bonus,
prorated through the date of death. If Employee is prevented from performing the
essential functions of his position, with or without reasonable accommodations,
as a result of physical or mental illness, injury or incapacity for either (i) a
period of ninety (90) consecutive days, or (ii) more than one hundred eighty
(180) days in the aggregate in any twelve (12) month period, then Employee
acknowledges that he would be unable to perform the essential functions of his
job and the Company may terminate the Employee's employment upon written notice
to Employee. The date of disability shall be the date specified by the Board of
Directors of the Company in the written notice provided to Employee by the
Company. In the event of termination due to disability, Employee shall be
entitled to receive any earned and unpaid Base Salary and bonus, prorated
through the date of disability. While receiving disability income payments under
the Company's disability income plan, Employee shall not be entitled to receive
any Base Salary hereunder, but shall continue to participate in the Company's
benefit plans, to the maximum extent permitted by such plans, until the
termination of his employment. Termination of his employment for disability
shall not restrict or limit the Employee's opportunity to receive continued
benefits under the Company's then existing disability plans(s) in accordance
with the terms of such plan(s).
(b) Termination by the Company For Cause. The Company may
terminate Employee's employment hereunder for Cause (as defined herein) at any
time upon notice to Employee setting forth in reasonable detail the nature of
such Cause. In the event that the Company terminates Employee's employment for
Cause (or Employee resigns from his employment with the Company), the Company
shall not be obligated to pay any salary or other compensation to Employee after
the effective date of termination, other than accrued and unpaid Base Salary
through the date of termination.
(c) Termination by the Company Without Cause. In the
event the Company terminates Employee's employment without Cause, then Employee
shall be entitled to any earned and unpaid Base Salary and bonus prorated
through the date of termination and severance pay in the form of continuation of
payment of his annualized Base Salary for a period of twelve (12) months from
the date of such termination, which shall be paid in accordance with the
Company's regular payroll practices and subject to any and all withholdings
pursuant to applicable law. In addition, the Company shall continue to provide,
through COBRA or otherwise, medical insurance coverage contemplated by Section
3(c) for a period of twelve (12) months following the date of Employee's
termination without Cause, or until Employee's earlier commencement of
employment with any other entity, whichever occurs first. Further, the Stock
Options which have vested and are exercisable on the date of such termination by
the Company without Cause shall continue to be exercisable for a period of one
(1) year from the date of such termination, as more specifically described in
the Stock Option Agreement. Payment of the severance benefits set forth in this
subparagraph 4(c), including provisions affecting Employee's Stock Options,
shall be subject to Employee's continued compliance with the provisions of
Sections 5 through 12 hereof.
(d) Termination by Employee for Good Reason. Employee may
terminate his employment hereunder, by written notice given to the Company, for
Good Reason. "Good Reason" shall be deemed to exist if one of the following
conditions is satisfied: (1) without the written consent of Employee, the
assignment to Employee of any duties materially inconsistent with Employee's
position (including status, offices, titles, and reporting requirements),
authority, duties, or responsibilities, or any other action by the Company which
results in a material diminution in such position, authority, duties, or
responsibilities, excluding for this purpose any isolated, insubstantial and
inadvertent action not taken in bad faith and which is remedied by the Company
promptly after receipt of notice thereof given by Employee; (2) a reduction by
the Company in Employee's Base Salary and/or benefits to which Employee is
entitled under this Agreement (except for any reductions in compensation or
benefits which may be applied broadly among all executives because of adverse
financial conditions of the Company or as part of a
restructuring of the Company's executive compensation programs); (3) the
Company's requiring Employee, without his consent, to be based at any office or
location other than the Company's principal office in Atlanta, Georgia or,
alternatively, Chicago, Illinois; or (4) so long as Employee continues to serve
as President and Chief Executive Officer under the terms of this Agreement, the
removal of Employee from the Company's Board of Directors, other than removal
which is related to a termination of Employee by the Company for Cause or
results from a Change of Control. In the event of such termination:
(i) the Company shall continue to pay to
Employee his Base Salary as of the date of such termination by Employee
for Good Reason for a period of twelve (12) months from the date of
termination;
(ii) the Company shall pay to Employee a pro rata
portion of his incentive bonus, if any, contemplated by Section 3(a)
for the year in which his employment terminated based upon the number
of days in the year elapsed prior to termination;
(iii) the Company shall continue to provide,
through COBRA or otherwise, medical insurance coverage contemplated by
Section 3(c) for a period of twelve (12) months following the date of
such termination by Employee for Good Reason, or until Employee's
earlier commencement of employment with any other entity, whichever
occurs first; and
(iv) the Stock Options which have vested and are
exercisable on the date of such termination by Employee for Good Reason
shall continue to be exercisable for a period of one (1) year from the
date of such termination, as more specifically described in the Stock
Option Agreement;
provided, however, payment of the severance benefits set forth in this
subparagraph 4(d), including provisions affecting Employee's Stock Options,
shall be subject to Employee's continued compliance with the provisions of
Sections 5 through 12 hereof.
5. CONFIDENTIALITY.
(a) Employee agrees that, both during and after
termination of his employment for any reason, Employee will hold in a fiduciary
capacity for the benefit of the Company, and shall not, without the prior
written consent of the Company, directly or indirectly use (for his own benefit
or for the benefit of any other person or entity) or disclose, except as
authorized by the Company in connection with the performance of Employee's
duties, any Confidential Information, as defined hereinafter, that Employee may
have or acquire (whether or not developed or compiled by Employee and whether or
not Employee has been authorized to have access to such Confidential
Information) during the term of, or in connection with, his employment. The term
"Confidential Information" as used in this Agreement shall mean and include any
information, data and know-how relating to the business of the Company that is
disclosed to Employee by the Company or known by him as a result of his
relationship with the
Company and not generally within the public domain (whether constituting a trade
secret or not), including without limitation, the following information:
(i) financial information, such as Company's earnings,
assets, debts, prices, fee structures, volumes of purchases or sales or
other financial data, whether relating to Company generally, or to
particular products, services, geographic areas, or time periods;
(ii) supply and service information, such as information
concerning the goods and services utilized or purchased by the Company,
the names or addresses of suppliers, terms of supply or service
contracts, or of particular transactions, or related information about
potential suppliers, to the extent that such information is not
generally known to the public, and to the extent that the combination
of suppliers or use of a particular supplier, though generally known or
available, yields advantages to Company the details of which are not
generally known;
(iii) marketing information, such as details about ongoing
or proposed marketing programs or agreements by or on behalf of
Company, marketing forecasts or results of marketing efforts or
information about impending transactions;
(iv) personnel information, such as employees' personal or
medical histories, compensation or other terms of employment, actual or
proposed promotions, hirings, resignations, disciplinary actions,
terminations or reasons therefor, training methods, performance, or
other employee information;
(v) customer information, such as any compilation of
past, existing or prospective customers, customer proposals or
agreements between customers and the Company, status of customer
accounts or credit, or related information about actual or prospective
customers; and
(vi) information provided to the Company by a third party
under an obligation of confidentiality.
The term "Confidential Information" does not include
information that has become generally available to the public by the act of one
who has the right to disclose such information without violating any right of
the Company or the customer to which such information pertains.
(b) The covenant contained in this Section 5 shall
survive the termination of Employee's employment with the Company for any reason
for a period of two (2) years; provided, however, that with respect to those
items of Confidential Information which constitute a trade secret under
applicable law, the Employee's obligations of confidentiality and non-disclosure
as set forth in this Section 5 shall continue to survive after said two (2) year
period to the greatest extent permitted by applicable law. These rights of the
Company are in addition to those rights the Company has under the common law or
applicable statutes for the protection of trade secrets.
6. NON-SOLICITATION OF EMPLOYEES. Employee agrees that he will,
for so long as he is employed hereunder and for a period of two (2) years after
termination of his employment, refrain from, unless previously consented to in
writing by the Company, on his behalf or on behalf of any other person or
entity, soliciting the employment of, employing or encouraging to leave the
employment of the Company, its successors or assigns or any affiliate of the
Company or its successors or assigns, any individual who at such time or within
one hundred eighty (180) days prior to such time is or was an employee of the
Company, its successors or assigns or any affiliate of the Company or its
successors or assigns.
7. NON-SOLICITATION OF CUSTOMERS. Employee agrees that he will
not, without the prior written consent of the Company, take any customer lists
of the Company after leaving his employ and that he will, for so long as he is
employed hereunder and for a period of one (1) year following termination of his
employment for any reason, refrain from soliciting, or attempting to solicit,
directly or by assisting others, any business from any of the Company's
customers, including actively sought prospective customers, with whom the
Employee had material contact (as defined herein) during his employment for
purposes of providing goods or services that are like or similar to or
competitive with those provided by the Company in connection with the Company's
Business, if the Company or its successors or assigns is also then still engaged
in the Company's Business. The term "Company's Business" as used in this
Agreement shall mean the business of turnkey cable, fiber optic, wireline and
wireless telecommunications services including land use planning; site
acquisition; site, systems (including but not limited to RF) and structural
engineering; permitting and zoning; civil, site, and tower construction; tower
erection; tower design and manufacturing; equipment services; site management
and maintenance; and build-to-suit financing/ownership of sites.
8. NON-COMPETITION. Employee expressly covenants and agrees that
during the term of his employment hereunder and for a period of one (1) year
after termination of his employment for any reason, he will not, without the
prior written consent of the Company, seek, obtain or accept a "Competitive
Position" in the "Restricted Territory" with a "Competitor" of the Company (as
such terms are hereafter defined), if the Company or its successors or assigns
is also then still engaged in the Company's Business. For purposes of this
Agreement, a "Competitor" of the Company means any business, individual,
partnership, joint venture, association, firm, corporation or other entity
engaged, wholly or partly, in the business of turnkey cable, fiber optic, and
wireline and wireless telecommunications services including land use planning;
site acquisition; site, systems (including but not limited to RF) and structural
engineering; permitting and zoning; civil, site and tower construction; tower
erection; tower design and manufacturing; equipment services; site management
and maintenance; and build-to-suit financing/ownership of sites; a "Competitive
Position" means the provision of services for the benefit of any Competitor of
the Company whereby Employee will use or is likely to use any Confidential
Information (as that term is defined in Section 5), or whereby Employee has
duties for such Competitor that are the same as or substantially similar to
those actually performed by him pursuant to the terms hereof; and the
"Restricted Territory" means and includes the geographic area comprising the
area within 100 miles of the Company's corporate headquarters in Atlanta,
Georgia and within 100 miles of the following office locations of the Company,
its subsidiaries, affiliates and/or divisions as set forth on Exhibit "C";
provided that on the date at
issue the Company has not permanently ceased to conduct business within such
area. Employee acknowledges and agrees that he has been or will be working
within and throughout the Restricted Territory as defined above or has had or
will have material contact with customers or actively sought prospective
customers of the Company located within such areas.
9. MATERIAL CONTACT. For the purposes of Sections 7 and 8 of this
Agreement, "material contact" exists between Employee and each customer or
potential customer: (i) with whom Employee dealt; (ii) whose dealings with the
Company were coordinated or supervised by Employee; or (iii) about whom Employee
obtained Confidential Information in the ordinary course of business as a result
of Employee's performance of his duties and responsibilities hereunder and in
the case of each of clauses (i), (ii) and (iii) above, such occurrence was
within two (2) years prior to the date of termination of Employee's employment
with the Company.
10. TOLLING OF PERIOD OF RESTRAINT. Employee hereby expressly
acknowledges and agrees that in the event the enforceability of any of the terms
of this Agreement shall be challenged in court or pursuant to arbitration and
Employee is not enjoined from breaching any of the restraints set forth in
Sections 5 through 8, then if a court of competent jurisdiction or arbitration
panel finds that the challenged restraint is enforceable, the time period of the
restraint shall be deemed tolled upon the filing of the lawsuit challenging the
enforceability of the restraint until the dispute is finally resolved and all
periods of appeal have expired, but in no event shall any restriction endure
beyond the two (2) year anniversary of the Employee's termination from
employment with the Company.
11. ACKNOWLEDGMENTS. The Employee hereby acknowledges and agrees
that the restrictions contained in Sections 5 through 8 are fair and reasonable
and necessary for the protection of the legitimate business interests of the
Company. Employee acknowledges that in the event the Employee's employment with
the Company terminates for any reason, the Employee will be able to earn a
livelihood without violating the restrictions contained in Sections 5 through 8
and that the Employee's ability to earn a livelihood without violating such
restrictions is a material condition to the Employee's employment and continued
employment with the Company.
12. WORK PRODUCT; INVENTIONS.
(a) Ownership by the Company. The Company shall own all
right, title and interest in and to all work product developed by Employee in
Employee's provision of services to the Company, including without limitation,
all preliminary designs and drafts, all other works of authorship, all
derivative works and patentable and unpatentable inventions and improvements,
all copies of such works in whatever medium such copies are fixed or embodied,
and all worldwide copyrights, trademarks, patents or other intellectual property
rights in and to such works (collectively the "Work Product"). All copyrightable
materials of the Work Product shall be deemed a "work made for hire" for the
purposes of U.S. Copyright Act, 17 U.S.C. ss. 101 et seq., as amended.
(b) Assignment and Transfer. In the event any right,
title or interest in and to any of the Work Product (including without
limitation all worldwide copyrights, trademarks,
patents or other intellectual property rights therein) does and shall not vest
automatically in and with the Company, Employee agrees to and hereby does
irrevocably assign, convey and otherwise transfer to the Company, and the
Company's respective successors and assigns, all such right, title and interest
in and to the Work Product with no requirement of further consideration from or
action by Employee or the Company.
(c) Registration Rights. The Company shall have the
exclusive worldwide right to register, in all cases as "claimant" and when
applicable as "author," all copyrights in and to any copyrightable element of
the Work Product, and file any and all applicable renewals and extensions of
such copyright registrations. The Company shall also have the exclusive
worldwide right to file applications for and obtain (i) patents on and for any
of the Work Product in Employee's name and (ii) assignments for the transfer of
the ownership of any such patents to the Company.
(d) Additional Documents. Employee agrees to execute and
deliver all documents requested by the Company regarding or related to the
ownership and/or other intellectual property rights and registrations specified
herein. Employee hereby further irrevocably designates and appoints the Company
as Employee's agent and attorney-in-fact to act for and on Employee's behalf and
stead to execute, register and file any such assignments, applications,
registrations, renewals and extensions and to do all other lawfully permitted
acts to further the registration, prosecution and issuance of patents, copyright
or similar protections with the same legal force and effect as if executed by
Employee.
13. RIGHTS TO MATERIALS. All records, files, memoranda, computer
programs, reports, price lists, customer lists, drawings, plans, sketches,
projections, business plans, financial information, Company documents and the
like (together with all copies thereof) relating to the business of the Company,
which Employee shall use or prepare or come in contact with in the course of, or
as a result of, his employment shall, as between the parties hereto, remain the
sole property of the Company. Upon the termination of his employment or upon the
prior demand of the Company, he shall immediately return all such materials and
shall not thereafter cause removal thereof from the premises of the Company.
14. ASSISTANCE IN LITIGATION. Employee shall, upon reasonable
notice, furnish such information and assistance to the Company as may reasonably
be required by the Company in connection with any litigation in which it is, or
may become, a party, and which arises out of facts and circumstances known to
Employee. The Company shall promptly reimburse Employee for his out-of-pocket
expenses incurred in connection with the fulfillment of his obligations under
this Section; provided, however, that Employee's obligations under this Section
shall only exist during the term of this Agreement and during the period, if
any, during which he receives compensation from the Company following the
termination or expiration of this Agreement.
15. SEVERABILITY. The parties covenant and agree that the
provisions contained herein are reasonable and are not known or believed to be
in violation of any federal, state, or local law, rule or regulation. Except as
noted below, should any provision of this Agreement be declared or determined by
any court of competent jurisdiction to be unenforceable or invalid for any
reason, the validity of the remaining parts, terms or provisions of this
Agreement shall not be affected thereby and the invalid or unenforceable part,
term or provision shall be deemed not to be a part of this Agreement. The
covenants set forth in this Agreement are to be reformed pursuant to Section 15
if held to be unreasonable or unenforceable, in whole or in part, and, as
written and as reformed, shall be deemed to be part of this Agreement.
16. REFORMATION. If any of the covenants or promises of this
Agreement are determined by any court of law or equity, with jurisdiction over
this matter, to be unreasonable or unenforceable, in whole or in part, as
written, Employee hereby consents to and affirmatively requests that said court
reform the covenant or promise so as to be reasonable and enforceable and that
said court enforce the covenant or promise as so reformed.
17. INJUNCTIVE RELIEF. Employee understands, acknowledges and
agrees that in the event of a breach or threatened breach of any of the
covenants and promises contained in this Agreement, the Company will suffer
irreparable injury for which there is no adequate remedy at law and the Company
will therefore be entitled to obtain, without bond, injunctive relief enjoining
said breach or threatened breach. The Employee further acknowledges, however,
that the Company shall have the right to seek a remedy at law as well as or in
lieu of equitable relief in the event of any such breach.
18. EMPLOYEE'S OBLIGATIONS UPON TERMINATION. Upon the termination
of Employee's employment hereunder for whatever reason, Employee shall
automatically tender Employee's resignation from any office Employee may hold
with the Company or any subsidiary of the Company, and Employee shall not at any
time thereafter represent himself to be connected or to have any connection with
the Company or its related entities.
19. ASSIGNMENT. Due to the personal service nature of Employee's
obligations, Employee may not assign this Agreement. Subject to the restrictions
in this Section, this Agreement shall be binding upon and benefit the parties
hereto, and their respective heirs, successors or assigns. The term "Company" as
used in this Agreement shall be deemed to include the successors and assigns of
the original or any subsequent entity constituting the Company as well as any
and all divisions, subsidiaries or affiliates thereof.
20. MUTUAL NON-DISPARAGEMENT; PRESS RELEASES.
(a) Mutual Non-Disparagement. The Company and Employee
agree that neither party will undertake any disparaging or harassing conduct
directed at the other at any time during the term of this Agreement or following
termination hereof.
(b) Press Releases. Other than as required by applicable
law, the parties agree that no public announcement or similar publicity with
respect to this Agreement or the termination of Employee's employment with the
Company will be issued, if at all, unless the parties agree as to the time,
manner and content of such announcement or publicity. Unless consented to by the
Company in advance or required by law, Employee shall keep this Agreement
strictly confidential and may not make any disclosure of this Agreement or any
of its terms or provisions to any person. The parties will consult with each
other in good faith
concerning the means by which the Company's employees, customers and suppliers
and others having dealings with Employee will be informed of the termination of
Employee's employment with the Company.
21. ENTIRE AGREEMENT; MODIFICATION; GOVERNING LAW. This Agreement
constitutes the entire understanding between the parties regarding the subject
matters addressed herein and supersedes any prior oral or written agreements
between the parties. This Agreement can only be modified by a writing signed by
both parties, and shall be interpreted in accordance with and governed by the
laws of the State of Georgia without regard to the choice of law provisions
thereof. Notwithstanding the foregoing, the protective provisions contained in
Sections 5 through 12 hereof shall be governed and enforced in accordance with
the laws of the state in which enforcement of such provisions is sought.
22. NEGOTIATED AGREEMENT. Employee and the Company agree that this
Agreement shall be construed as drafted by both of them, as parties of
equivalent bargaining power, and not for or against either of them as drafter.
23. REVIEW AND VOLUNTARINESS OF AGREEMENT. Employee acknowledges
Employee has had an opportunity to read, review, and consider the provisions of
this Agreement, that Employee has in fact read and does understand such
provisions, and that Employee has voluntarily entered into this Agreement.
24. NON-WAIVER. The failure of the Company to insist upon or
enforce strict performance of any provision of this Agreement or to exercise any
rights or remedies hereunder will not be construed as a waiver by the Company to
assert or rely upon any such provision, right or remedy in that or any other
instance.
25. NO CONFLICTING OBLIGATIONS. Employee hereby acknowledges and
represents that Employee's execution of this Agreement and performance of
employment-related obligations and duties for the Company as set forth hereunder
will not cause any breach, default or violation of any other employment,
non-disclosure, confidentiality, non-competition or other agreement to which
Employee may be a party or otherwise bound. Employee hereby agrees that he will
not use in the performance of his duties for the Company (or otherwise disclose
to the Company) any trade secrets or confidential information of any prior
employer or other person or entity if and to the extent that such use or
disclosure may cause a breach or violation of any obligation or duty owed to
such employer, person, or entity under any agreement or applicable law.
26. RIGHT TO ARBITRATION. Any controversy or claim arising out of
or relating to Employee's employment by the Company, or the termination thereof,
or this Agreement, or the breach thereof (including, without limitation, any
claim that any provision of this Agreement or any obligation of Employee is
illegal or otherwise unenforceable or voidable under law, ordinance or ruling or
that Employee's employment by the Company was illegally terminated) shall be
settled by arbitration at the office of the American Arbitration Association in
Atlanta, Georgia, in accordance with the United States Arbitration Act (9 USC,
ss. 1 et seq.) and the rules of the American Arbitration Association. Company
and Employee each consents and submits to the personal jurisdiction and venue of
the trial courts of Xxxx County, Georgia, and also to the
personal jurisdiction and venue of the United States District Court for the
Northern District of Georgia for purposes of enforcing this provision. All
awards of the arbitration shall be binding and non-appealable except as
otherwise provided in the United States Arbitration Act. Judgment upon the award
of the arbitrator may be entered in any court having jurisdiction thereof. The
arbitration shall take place at a time noticed by the American Arbitration
Association regardless of whether one of the parties fails or refuses to
participate. The arbitrator shall have no authority to award punitive damages,
but will otherwise have the authority to award any remedy or relief that a court
of competent jurisdiction could order or grant, including, without limitation,
specific performance of any obligation created under this Agreement, the
issuance of an injunction or other provisional relief, or the imposition of
sanctions for abuse or frustration of the arbitration process. The parties shall
be entitled to engage in reasonable discovery, including a request for the
production of relevant documents. Depositions may be ordered by the arbitrator
upon a showing of need. The foregoing provisions shall not preclude the Company
from bringing an action in any court of competent jurisdiction for injunctive or
other provisional relief as the Company may determine is necessary or
appropriate. [TO BE INITIALED BELOW BY EMPLOYEE AND COMPANY]
-------- -------- ---------
Employee Company Date
27. NOTICES. Any notice or other communications under this
Agreement shall be in writing, signed by the party making the same, and shall be
delivered personally or sent by certified or registered mail, postage prepaid,
addressed as follows:
If to Employee: Xxxxxx X. Xxxxxxx
0000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
If to the Company: o2wireless Solutions, Inc.
000 Xxxxxxxxxx Xxxxx Xxxx.
Xxxxxxx, Xxxxxxx 00000
Attention: Chairman of the Board or
Corporate Secretary
or to such other address as may hereafter be designated by either party hereto.
All such notices shall be deemed given on the date received.
28. DEFINITIONS. As used in this Agreement, the following terms
shall have the following meanings:
(a) "CAUSE." Cause shall exist:
(i) In the event of Employee's willful and
persistent inattention to or failure to properly and adequately perform
his duties and responsibilities hereunder, such performance to be
evaluated in the reasonable judgment of the Board of Directors, and
such inattention or failure to perform continues for a period of thirty
(30) calendar days after notice to Employee from the Board of Directors
regarding such inattention or failure to perform;
(ii) In the event of Employee's commission of
acts amounting to gross negligence or willful misconduct;
(iii) If Employee is convicted of (from which
conviction no appeal may be taken or the time in which to take an
appeal has expired), pleads guilty to, enters a plea of nolo contendre
for or confesses to any felony or any crime involving moral turpitude,
fraud or embezzlement of funds or property; or
(iv) If Employee fails to follow directions set
out in written resolutions passed by the Board of Directors or fails to
comply with the Company's written policies and procedures and such
failure continues for a period of ten (10) business days after notice
to Employee from the Board of Directors regarding such failure.
(b) "CHANGE OF CONTROL" shall be deemed to have occurred
if:
(i) Upon the consummation of any transaction in
which any person (or persons acting in concert), partnership,
corporation or other organization shall, after the date of this
Agreement, own, control, or hold with the power to vote more than 50%
of any class of voting securities of the Company; provided, however,
that any such transaction by shareholders of the Company who, as of the
date of this Agreement, own 20% or more of the voting securities of the
Company, shall not be a Change of Control; or
(ii) Upon the consummation of any transaction,
after the date of this Agreement, in which the Company, or
substantially all of the assets of the Company, shall be sold or
transferred to, or consolidated or merged with, another corporation
which is not a majority owned subsidiary of the Company; provided,
however, if the Company shall become a subsidiary of another
corporation or shall be merged or consolidated into another corporation
and a majority of the outstanding voting shares of the parent or
surviving corporation are owned immediately after such acquisition,
merger, or consolidation by the owners of a majority of the voting
shares of the Company immediately before such acquisition, merger, or
consolidation, then no Change of Control shall be deemed to have
occurred.
IN WITNESS WHEREOF, the parties hereto have hereunto affixed their
hands as of the date first above written.
THE COMPANY:
O2WIRELESS SOLUTIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
--------------------------------------------
Xxxxxxx X. Xxxxxxxx, Xx.,
Chairman of the Board
EMPLOYEE:
/s/ Xxxxxx X. Xxxxxxx L.S.
------------------------------------------
Xxxxxx X. Xxxxxxx
