EXHIBIT 10.35
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made as of the 6th
day of November, 2001 (the "Effective Date"), by and among LECSTAR CORPORATION,
a Texas corporation (the "Company"), and XXXXX X. XXXXXX. (the "Employee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company desires to employ Employee, and the Company and
the Employee desire to enter into an employment agreement to establish the
rights and obligations of the Employee and the Company in such employment
relationship;
WHEREAS, the terms of this Agreement have been approved by the Board of
Directors of the Company;
NOW, THEREFORE, and in consideration of the mutual covenants herein
contained, the Company and the Employee hereby mutually agree as follows:
1. Employment and Duties. The Company hereby employs the Employee, and
the Employee hereby accepts employment with the Company upon the terms and
conditions hereinafter set forth. The Employee shall serve as a Vice President,
Chief Financial Officer and Treasurer of the Company. In such capacities, the
Employee shall have all powers, duties, and obligations as are normally
associated with such positions. The Employee shall further perform such other
duties related to the business of the Company or its Affiliate (as defined
below), including travel, as may from time to time be reasonably requested of
him by the Company's Board of Directors. The Employee shall devote all of his
skills, time, and attention solely and exclusively to said position and in
furtherance of the business and interests of the Company except for:
(a) time spent in managing his personal, financial and legal affairs
and serving on corporate, civic or charitable boards or committees, in each case
only if and to the extent not substantially interfering with the performance of
such responsibilities, and
(b) periods of vacation to which he is entitled.
2. Term of Employment. Unless otherwise terminated in accordance with
the terms hereof, the term of this Agreement shall be three (3) years commencing
on the date hereof; provided, however, that unless the Company gives written
notice to the Employee, or vice versa, at least six (6) months prior to the
expiration of the original term, or the expiration of any subsequent renewal
thereof, the term shall be extended for an additional year (such term, including
any renewals thereof, is referred to herein as the "Employment Term").
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3. Compensation.
(a) *Base Salary. For such services, the Employee shall receive a
minimum annual base salary at the rate of $145,000.00 per year, commencing on
the Effective Date and, when the Company becomes operating cash-flow positive as
reported in the Company's consolidated financial statements, annual base salary
rate shall be increased to between $175,000 and $225,000 (the "Salary"). In
addition, the compensation committee of the Board of Directors of the Company
shall conduct an annual review to determine Employee's eligibility to receive a
raise in his Salary in each year of the Employment Term based upon both
cost-of-living adjustments and the performance of the Company during the annual
period. In the event the Salary is increased, the amount of the prior Salary,
together with any increase(s), shall be Employee's new Salary. The Salary shall
be payable in equal installments, no less frequently than semi-monthly, in
accordance with the Company's regular payroll practices. The Salary shall be
prorated on a daily basis for the years or months, as the case may be, in which
Employee commences or terminates his employment relationship hereunder.
(b) *Annual Bonus. The Employee shall be entitled to an annual bonus
opportunity, based upon performance criteria mutually agreed upon by the Company
and the Employee, with a target bonus equal to fifty percent (50%) of Salary.
The maximum bonus opportunity shall be determined by the Board of Directors of
the Company from time to time. Any bonuses earned will be paid within ninety
(90) days following the close of the Company's fiscal year.
(c) Long-Term Compensation. The Employee shall be entitled to
participate in such long-term incentive compensation programs, including, but
not limited to, equity incentives, as may be developed from time to time for the
senior management of the Company. As an inducement to the Employee entering into
this Agreement, the Employee shall be granted an option in accordance with
Exhibit A, with such option being subject to the terms set forth in Exhibits A-1
and B.
(d) Relocation Costs. The Company shall reimburse the Employee for
reasonable relocation costs. These costs shall include the selling of the
Employee's current residence, purchasing another residence, obtaining a
mortgage, and moving of household items. The reimbursement of relocation costs
will be in the form of a bonus, subject to a maximum of $30,000, and may be
deferred at the discretion of the Company subject to Company's profitability.
4. Benefits. The Company shall further provide Employee with all health
and life insurance coverages, sick leave and disability programs, tax-qualified
retirement plans, paid holidays and vacations, expense reimbursement policies,
moving and relocation policies, perquisites, and such other fringe benefits of
employment as the Company may provide from time to time to actively employed
senior executives of the Company who are similarly situated. In addition, during
the term of this Agreement (including extensions thereof) the Company shall
provide the Employee:
*Any bonus paid will be at the option of the Company subject to
profitability and payable in stock or cash.
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(a) reimbursement for all reasonable expenses incurred by the Employee
in connection with the conduct of the Company's business on presentation of
reasonable and appropriate receipts and in accordance with the Company's regular
reimbursement policy applicable to senior executives;
(b) an individual disability insurance policy, at the Company's
expense, in addition to the long-term disability insurance which replaces at
least 60% of the Employee's monthly Salary; and
(c) a minimum of 4 weeks of paid vacation per year.
5. Covenants of Employee.
(a) The terms below shall have the following meanings:
(i) "Affiliate" shall mean any individual or any corporation,
limited liability company, partnership, joint venture,
association or other entity or enterprise that directly or
indirectly controls, is controlled by, or is under common
control with, the indicated person or entity;
(ii) "Competitive Services"shall mean the provision of competitive
local exchange,data,long distance,and internet communications
services as a carrier to end users, which are the services
provided by the Company as of the date of execution hereof;
(iii)"Entity" shall mean any individual or any corporation,limited
liability company, partnership, joint venture, association or
other entity or enterprise other than the Company or its
respective Affiliates;
(iv) "Principal" or "Representative" shall mean a principal,owner,
partner, shareholder, joint venturer, investor, trustee,
director, officer, manager, employee, agent,representative or
consultant;
(v) "Protected Customers" shall mean customers of the Company or
its Affiliates within the United States of America with whom
Employee had material contact during his employment with the
Company, or about whom Employee learned Confidential
Information (as defined below), during the one year period
immediately prior to the date of execution hereof;
(vi) "Protected Employees" shall mean individuals providing
professional services to the Company or its Affiliates who
are then employed or leased by the Company or its Affiliates
or who were so employed or leased by the Company or its
Affiliates at any time during the one-year period immediately
prior to the termination of Employee's employment; and
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(vii)"Services" shall mean executive, managerial, or financial
services related to the provision of Competitive Services,
which are the services provided by Employee for or on the
Company's behalf during his employment with the Company and
as of the date of execution hereof.
(b) During the Employment Term and for a period of one (1) year
immediately following termination of Employee's employment pursuant to Section
10, 11, or 12 hereof, Employee shall not, directly or indirectly, on Employee's
own behalf or as a Principal or Representative of any Entity:
(i) provide Services within a 50-mile radius of any of the
locations where Employee has performed Services for the
Company or its Affiliates during the last year of employment
with the Company, as listed on Exhibit C hereto and
incorporated herein by reference (the "Territory"), to any
Entity engaged in providing Competitive Services. In the
event that, and each time during Employee's employment with
the Company or its Affiliates, the Territory in which Employee
performs services or the duties which Employee performs
changes, Employee and the Company shall amend Exhibit C as
necessary to reflect such change;
(ii)call upon, solicit, induce, recruit or attempt to solicit any
Protected Employee for the purpose or with the intent of
enticing such Protected Employee away from or out of the
employ of, or other business relationship with, the Company or
its Affiliates or to enter employment or other business
relationship with any other Entity engaged in providing
Competitive Services;
(iii)solicit or call upon any Protected Customer for the purpose
of providing Competitive Services;
(iv)call upon any prospective acquisition candidate either (A)
called upon by the Company or its Affiliates or (B) for which
the Company or its respective Affiliates made an acquisition
analysis, and, in either case, with whom Employee had material
contact or about whom Employee learned Confidential
Information (as defined below) during the three (3) year
period immediately prior to the termination of Employee's
employment (or shorter period, if Employee has not then been
employed by Company for three (3) years), for the purpose of
acquiring such entity.
(c) Notwithstanding anything contained in this Section 5 to the
contrary, nothing shall prevent the Employee from: (i) having a financial
interest in a publically-traded competitor of the Company if that interest is in
the form of ownership of less than five (5%) percent of the outstanding stock of
such company; and/or (ii) engaging in activities otherwise prohibited by this
section if the Employee receives the prior approval of the Board of Directors of
the Company which approval must be based upon a finding that there is no actual
conflict of interest (such approval shall not be unreasonably withheld).
(d) The covenants in this Section 5 are severable and separate, and if
any specific covenant is found to be unenforceable, the provisions of any other
covenant shall not be affected. Moreover, in the event any court of competent
jurisdiction shall determine that the scope, time or territorial restrictions
set forth are unreasonable, then it is the intention of the parties that such
restrictions be enforced to the fullest extent which the court deans reasonable
and the Agreement shall thereby be reformed.
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6. Confidential Information.
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(a) The terms below shall have the following meanings;
(i) "Trade Secrets" shall mean the trade secrets of the Company
and its subsidiaries and affiliates as defined in the Georgia
Trade Secrets Act.
(ii) "Confidential Information" shall mean information of the
Company, other than Trade Secrets, and its subsidiaries and
affiliates, its licensors, vendors, suppliers, customers or
prospective licensors, vendors, suppliers or customers, that
is of value to its owner and is treated as confidential,
including, but not limited to, technical or non-technical
data, formulas, patterns, compilations, programs, devices,
methods, techniques, drawings, processes, financial data,
financial plans, product plans, or a list of actual or
potential customers or suppliers, future business plans,
licensing strategies, advertising campaigns, information
regarding executives and employees, and the terms and
conditions of this Agreement. Confidential Information shall
not include any data or information that (x) has been
voluntarily disclosed to the general public by the Company,
(y) has been independently developed and disclosed to the
general public by others, or (z) otherwise enters the public
domain through lawful means.
(b) The Company may disclose to Employee certain Trade Secrets and
Confidential Information. Employee acknowledges and agrees that the Trade
Secrets and Confidential Information are the sole and exclusive property of the
Company (or a third party providing such information to the Company) and that
the Company or such third party owns all worldwide rights therein under patent,
copyright, trade secret, confidential information, or other property right.
Employee acknowledges and agrees that the disclosure of the Trade Secrets and
Confidential Information to Employee does not confer upon Employee any license,
interest or rights of any kind in or to the Trade Secrets or Confidential
Information. Employee may use the Trade Secrets and Confidential Information
solely for the benefit of the Company while Employee is employed or retained by
the Company. Except in the performance of services for the Company, Employee
will hold in confidence and not reproduce, distribute, transmit, reverse
engineer, decompile, disassemble, or transfer, directly or indirectly, in any
form, by any means, or for any purpose, the Trade Secrets or Confidential
Information or any portion thereof. Employee agrees to return to the Company,
upon request by the Company, the Trade Secrets and Confidential Information and
all materials relating thereto.
(c) Employee's obligations under this Agreement with regard to the
Trade Secrets shall remain in effect for as long as such information shall
remain a trade secret under applicable law. Employee acknowledges that its
obligations with regard to the Confidential Information shall remain in effect
while Employee is employed or retained by the Company and for two (2) years
thereafter.
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(d) Employee acknowledges that existing or prospective customers of
the Company may be companies which are publicly traded and subject to various
rules and regulations of the Securities and Exchange Commission. Employee
acknowledges that the Company has a policy that no one associated with the
Company may trade in securities of any customer of the Company or the Company
itself based on material, nonpublic information concerning the customer.
Additionally, the Company expressly forbids the unauthorized disclosure of any
nonpublic information acquired by anyone associated with the Company relating to
a customer of the Company. Employee shall notify the Company prior to trading
the securities of any customer or Securities of the Companies.
(e) Nothing contained herein shall be deemed to waive any of the
Company's rights or remedies under any applicable trade secrets acts, including,
but not limited to, the Georgia Trade Secrets Act.
(f) Upon termination of employment for any reason, Employee shall
return immediately to the Company all documents, property, computerized
information, and other records of the Company, and all copies thereof, within
Employee's possession, custody or control, including but not limited to any
materials containing any Trade Secrets or Confidential Information or any
portion thereof.
7. Ownership. For purposes of this Agreement, "Work Product" shall mean
the data, materials, documentation, computer programs, inventions (whether or
not patentable), and all works of authorship, including all worldwide rights
therein under patent, copyright, trade secret, confidential information, or
other property right, created or developed in whole or in part by Employee,
whether prior to the date of this Agreement or in the future while employed by
the Company (whether developed during work hours or not) and which either (i)
relate to the present or anticipated business, research, developments, tests,
products, work or activities of the Company or (ii) result from or are suggested
by any work Employee may do for the Company. All Work Product shall be
considered work made for hire by the Employee and owned by the Company. If any
of the Work Product may not, by operation of the law, be considered work made
for hire by Employee for the Company, or if ownership of all right, title, and
interest of the intellectual property rights therein shall not otherwise vest
exclusively in the Company, Employee hereby assigns to the Company, and upon the
future creation thereof automatically assigns to the Company, without further
consideration, the ownership of all Work Product. The Company shall have the
right to obtain and hold in its own name copyrights, registrations, and any
other protection available in the Work Product. Employee agrees to perform,
during or after Employee's employment, such further acts as may be necessary or
desirable to transfer, perfect, and defend the Company's ownership of the Work
Product that are reasonably requested by the Company.
8. Equitable Relief. The parties to this Agreement acknowledge that a
breach by Employee of any of the terms or conditions of this Agreement will
result in irrevocable harm to the Company and that the remedies at law for such
breach may not adequately compensate the Companies for damages suffered.
Accordingly, Employee agrees that in the event of such breach, the Company shall
be entitled to injunctive relief or such other equitable remedy as a court of
competent jurisdiction may provide. Nothing contained herein will be construed
to limit the Company's right to any remedies at law or equity, including the
recovery of damages for breach of this Agreement.
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9. No Defense. The existence of any claim, demand, action or cause of
action that Employee may have against the Company, whether predicated upon this
Agreement or otherwise, shall not constitute a defense to the enforcement by the
Company of any of the covenants contained in Sections 5, 6, 7 and 8 hereof.
10.Termination Without Compensation. The Employee may be terminated
prior to the expiration of the Employment Term upon:
(a) written notice to the Employee upon the occurrence of either of
the following:
(i) the substantiated commission by the Employee of any deliberate
and premeditated act involving moral turpitude materially detrimental to the
Company's economic interests; or
(ii) the conviction of the Employee of a felony.
(b) upon thirty (30) days prior written notice by the Company to the
Employee upon the occurrence of any of the following:
(i) the willful damage of a material nature directly caused by the
Employee to the Company's economic interests; or
(ii)Employee's gross negligence in connection with the performance
of his duties that is materially detrimental to the Company's economic
interests;
unless the Employee has cured the condition to the reasonable satisfaction of
the Company within the 30-day period following receipt of any such written
notice.
(c) ten (10) days' written notice by Employee to the Company if the
Employee resigns without Good Reason as defined in Section 12.
Upon such termination, the parties hereto shall be relieved of any obligations
under this Agreement (except for any obligations set forth in Sections 5, 6, 7,
8, 15 and 16, thereof) from and after the effective date of Employee
termination.
11. Termination By the Company Without Xxxxx.Xx the event the Employee's
employment hereunder is terminated during the Employment Term by the Company for
any reason other than those specified in Section 10 above, the Company shall pay
to Employee, as severance compensation for such termination, an amount equal to
the sum of Salary and that year's target bonus amount subject to the applicable
multipliers as defined herein, payable in cash in a lump sum as soon as
practicable following such termination based on the length of service between
the Effective Date of this agreement and the date of termination("Length of
Service"); if the Length of Service is less than one-year, then the multiplier
shall be .25; if the Length of Service is more than one-year but less than
two-years, then the multiplier shall be .33; if the Length of Service is more
than two-years but less than three-years, then the multiplier shall be .5, and
if the Length of Service is greater than three-years, then the multiplier shall
be one (1). In addition, the Employee's rights and interests in any warrants and
options through the date of termination and all other benefits in which Employee
is then a participant (subject to the terms of such benefit plans) upon such
termination, shall immediately vest in full and be exercisable by Employee
within 90 days.
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12. Employee's Right to Terminate With Good Reason.
(a) The terms below shall have the following meanings;
(i) "Good Reason" shall mean the occurrence of one of the
following events.
(u) The Employee's title is changed in a materially adverse
manner or his duties or responsibilities are materially
diminished.
(v)The Employee's Salary is reduced for any reason other
than in connection with the termination of his employment.
(w)For any reason other than in connection with the
termination of the Employee's employment, the Company
materially reduces any fringe benefit provided to the
Employee hereunder below the level of such fringe benefit
provided generally other actively employed similarly
situated executives of the Company.
(x) A change of over fifty (50) miles in the Employee's
principal place of employment in Atlanta, Georgia.
(y) The Company otherwise materially breaches, or is unable
to perform its obligations under this Agreement.
(z) The occurrence of a "Change of Control" as defined below.
(ii) "Change of Control" shall mean:
(w) the acquisition by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of
the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) (a "Person") of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of voting securities of the corporation
where such acquisition causes such person to own thirty-
five percent (35%)or more of the combined voting power of
the then outstanding voting securities of the Company
entitled to vote generally in the election of directors
(the "Outstanding Company Voting Securities"); provided,
however, that for purposes of this Subsection (w), the
following acquisitions shall not be deemed to result in a
Change of Control: (1) any acquisition directly from
the Company, (2) any acquisition by the Company, (3) any
acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Company or any
corporation controlled by the Company, or (4) any
acquisition by any corporation pursuant to a transaction
that complies with clauses (1), (2) and (3) of Subsection
(y) below; and provided further, that if any Person's
beneficial ownership of the Outstanding Company Voting
Securities reaches or exceeds thirty-five percent (35%)
as a result of a transaction described in clause (1) or
(2) above, and such Person subsequently acquires
beneficial ownership of additional voting securities
of the Company, such subsequent acquisition shall be
treated as an acquisition that causes such Person to
own thirty-five percent (35%)or more of the Outstanding
Company Voting Securities; or
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(x)individuals who as of the date hereof, constitute the
Board of Directors of the Company (the "Incumbent Board")
cease for any reason to constitute at least a majority of
the Board; provided, however, that any individual becoming
a director subsequent to the date hereof whose election,
or nomination for election by the Company's shareholders,
was approved by a vote of at least two-thirds of the
directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the
Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office occurs as a
result of an actual or threatened election contest with
respect to the election or removal of directors or other
actual or threatened solicitation of proxies or consents
by or on behalf of a Person other than the Board; or
(y)the approval by the shareholders of the Company of a
reorganization, merger or consolidation or sale or other
disposition of all or substantially all of the assets of
the Company ("Business Combination") or, if consummation
of such Business Combination is subject, at the time of
such approval by shareholders, to the consent of any
government or governmental agency, the obtaining of such
consent (either explicitly or implicitly by consummation);
excluding, however, such a Business Combination pursuant
to which (1) all or substantially all of the individuals
and entities who were the beneficial owners of the
Outstanding Company Voting Securities immediately prior to
such Business Combination beneficially own, directly or
indirectly, more than 60% of; respectively, the then
outstanding shares of common stock and the combined voting
power of the then outstanding voting securities entitled
to vote generally in the election of directors, as the
case may be, of the corporation resulting from such
Business Combination (including, without limitation, a
corporation that as a result of such transaction owns the
Company or all or substantially all of the Company's
assets either directly or through one or more
subsidiaries) in substantially the same proportions as
their ownership, immediately prior to such Business
Combination of the Outstanding Company Voting Securities,
(2) no Person (excluding any employee benefit plan (or
related trust)of the Company or such corporation resulting
from such Business Combination) beneficially owns,directly
or indirectly, thirty-five percent (35%) or more of,
respectively, the then outstanding shares of common stock
of the corporation resulting from such Business
Combination or the combined voting power of the then
outstanding voting securities of such corporation except
to the extent that such ownership existed prior to the
Business Combination and (3) at least a majority of the
members of the board of directors of the corporation
resulting from such Business Combination were members of
the Incumbent Board at the time of the execution of the
initial agreement, or of the action of the Board,
providing for such Business Combination; or
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(z)approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company.
Notwithstanding the foregoing, no Change of Control shall be deemed to have
occurred for purposes of this Agreement by reason of any actions or events in
which the Employee participates in a capacity other than in his capacity as
executive or as a director of the Company.
(b) The Employee may terminate his employment at any time with
Good Reason upon written notice to the Company. In the event that the Company is
unable to cure the event which constitutes Employee's Good Reason for
terminating the Agreement within thirty (30) days of such notice, the Company
shall have the same obligations to the Employee as those set forth in Section 11
provided that the Employee's Good Reason is other than a Change of Control of
the Company. In the case of a Change of Control, the multiplier used for the
calculation in Section 11 shall be three (3). The failure by the Employee to set
forth any fact or circumstance which contributes to a showing of Good Reason
shall not waive any right of thc Employee hereunder or preclude the executive
from asserting such fact or circumstance in enforcing his rights hereunder.
13. Death of the Employee. If the Employee dies during the Employment
Term, (a) this Agreement shall terminate, and (b) the Company will pay to the
Employee's estate the Employee's Salary through the end of the calendar month in
which such death occurs. The Company benefit plans in which Employee was a
participant prior to his death shall vest in full upon his death and be
exercisable by Employee's estate, subject to the terms of such benefit plans.
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14. Compliance with Securities Laws. Employee agrees to comply with all
applicable state and federal securities laws, rules, and regulations, as may be
in effect from time to time,
15. Governing Law. This Agreement is being made in the State of Georgia
and shall be construed and enforced in accordance with the laws of the State of
Georgia.
16. Arbitration. The parties agree that with the exception of claims for
injunctive relief, any dispute, claim or controversy of whatever nature arising
out of or relating to the negotiation, execution, performance or breach of this
Agreement or any other dealings between them shall be resolved solely by
arbitration before three panel members in proceedings conducted in Atlanta,
Georgia before the American Arbitration Association in accordance with its
Commercial Arbitration Rules. The decision of a majority of said panel members
shall be deemed conclusive, final and binding upon the parties; and may be
entered as the judgment of any court of competent jurisdiction. The parties
shall execute all submission agreements and other documents authorizing the
submission of said dispute to arbitration for a final determination and award.
The arbitration panel shall be empowered to award attorney's fees and expenses
of arbitration (including expert witness fees) to the prevailing party in any
such arbitration. Furthermore, with respect to any civil action instituted for
injunctive relief, the parties hereby expressly agree to submit themselves to,
and consent to the jurisdiction and venue of the Superior Court of Xxxxxx
County, Georgia. Nothing contained in this paragraph shall restrict or prevent
any party from initiating a proceeding in equity before any court of competent
jurisdiction to obtain a temporary restraining order, injunction or other
equitable relief which said initiating party may have against the other.
17. Assignability. The Employee may not assign his interest in or
delegate his duties under this Agreement. The rights and obligations of the
Company and the Subsidiary hereunder may be assigned only by operation of law in
connection with a merger in which the Company or Subsidiary, as the case may be,
is not the surviving corporation or in connection with the sale of substantially
all of the assets of the Company or Subsidiary, and in the latter event such
assignment shall not relieve the Company or Subsidiary of its obligations
hereunder.
18. Indemnification of Employee as a Director and Officer of the
Companies. The Company hereby agrees that it shall indemnify Employee to the
fullest extent permitted by applicable law, from and against all losses, costs,
claims, judgments and expenses, as and when incurred by Employee by reason of
his being or having been a director and/or an officer of the Company. The
indemnification provided for herein shall not be deemed exclusive of any other
rights to which Employee may be entitled under any by-law, agreement, insurance
policy, vote of shareholders or otherwise.
19. Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the Company and Subsidiary, its successors and assigns.
20. Notices. All notices, demands and requests which may be given or
which are required to be given by either party to the other, and any exercise of
a right of termination provided by this Agreement, shall be in writing and shall
be deemed effective when either: (1) personally delivered to the intended
recipient; (2) sent by certified or registered mall, return receipt requested,
addressed to the intended recipient at the address specified below; (3)
delivered in person to the address set forth below for the party to which the
notice was given; (4) deposited into the custody of a nationally recognized
overnight delivery service such as Federal Express Corporation, Xxxxx or
Purolator, addressed to such party at the address specified below; or (5) sent
by facsimile, telegram or telex, provided that receipt for such facsimile,
telegram or telex is verified by the sender and followed by a notice sent in
accordance with one of the other provisions set forth above. Notices shall be
effective on the date of delivery or receipt, of, if delivery is not accepted,
on the earlier of the date that delivery is refused or three (3) days after the
date the notice is mailed. For purposes of this Paragraph, the addresses of the
parties for all notices are as follows (unless changes by similar notice in
writing are given by the particular person whose address is to be changed):
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If to the Employee: 00 Xxxxxx Xxxxx Xxxxx
Xxxxxx, XX 00000
If to the Company: 4501 Circle 75 Parkway
Bldg. D-4210
Xxxxxxx, Xxxxxxx 00000
21. Entire Agreement; Modification: This Agreement constitutes the
entire agreement of the parties hereto with respect to the subject matter hereof
and may not be modified or amended in any way except in writing by the parties
hereto.
22. Waiver. No waiver by the Company of any breach by the Employee of
this Agreement shall be construed to be a waiver as to succeeding breaches.
23. Severability. In any provision or part of any provision of this
Agreement is held invalid or unenforceable by a court of competent jurisdiction,
such holding shall not affect the enforceability of any other provisions or
parts thereof; and all other provisions and parts thereof shall continue in full
force and effect.
24. Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original but all of which together shall constitute
one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
or as of the date and year first above written.
THE COMPANY:
LECSTAR CORPORATION
By:/s/ W. Xxxx Xxxxx
Name: W. Xxxx Xxxxx
----------------------
Title:President
EMPLOYEE:
--------
/s/ Xxxxx X. Xxxxxx
-------------------
Xxxxx X. Xxxxxx.
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Exhibit A
EMPLOYEE'S OPTIONS
The option to be granted to Employee shall be made pursuant to the
terms and conditions reflected by the form of Stock Option Grant Certificate
attached as Exhibit A-1 hereto, except as otherwise set forth in this Exhibit A:
1) An option for a total of 1,000,000 shares of Company common stock
shall be granted to the Employee as soon as practicable at the exercise prices
of $.42 per share.
2) The options shall be granted as incentive stock options, to the
extent of permissible statutory limits.
3) The options shall have maximum ten-year terms.
4) each option shall vest ratably over a seven-year period and shall
become immediately vested in accordance with the terms of the
Employment Agreement.
5) The definition of "Cause" as used in the Stock Option Certificate
shall be the same as used in the Employment Agreement.
Exhibit C
EMPLOYEE'S WORK LOCATION(S) FOR PURPOSES
OF DEFININITION OF "TERRITORY"
0000 Xxxxxx 00 Xxxxxxx, Xxxxxxx, Xxxxxxx 00000
