Exhibit 10.62
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") dated April 30, 2004,
by and between PHONE1GLOBALWIDE, INC., a Delaware corporation with an address at
000 Xxxxx Xxxxxxxx Xxxx., Xxxxx 0000, Xxxxx, Xxxxxxx 00000 (the "Company"), and
Xxxxx Xxxxxxxx with an address at 000 Xxxxxxx Xxxx, Xxxx XX0, Xxx Xxxxxxxx XX
00000 (the "Executive"). The Company and the Executive are sometime individually
referred to as a "Party" and collectively as the "Parties".
WITNESSETH:
WHEREAS, the Company is in the business of providing pay phone
telecommunications services to domestic and international markets (the
"Business") and the Company desires to induce the Executive to enter into the
employment of the Company for the period provided in this Agreement in
accordance with the terms and conditions set forth below; and
WHEREAS, the Company and the Executive intend for the Executive to
utilize his professional experience to assist the Company to implement its
financial and commercial business plan; and
WHEREAS, the Executive wishes to be engaged and employed by the Company
and the Company wishes to engage and employ the Executive, on the terms provided
herein.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged and accepted, the parties hereto
agree as follows:
1. Recitals. The above recitals are true, correct and incorporated herein by
reference.
2. Employment.
a. Engagement of the Executive. The Company agrees to employ the
Executive and the Executive accepts employment as Executive Director, Corporate
Development of the Company.
b. Employment Period. The Company shall employ the Executive and the
Executive shall be employed by the Company, on the terms and conditions
hereinafter set forth, for a period commencing as of April 30, 2004 (the
"Effective Date") and ending on the first anniversary of the Effective Date.
Subject to the provisions of Section 4 of this Agreement, the period of
employment shall be automatically extended for successive one-year terms of
employment, unless either the Company or the Executive notifies the other in
writing at least forty five (45) days prior to the end of the then current term
that it or he does not intend to renew such employment, in which case such
employment will expire at the end of the then current term. All references
herein to the "Employment Period" shall refer to both the initial term and any
such successive renewal term.
c. Duties and Powers. During the Employment Period, the Executive will
serve in the capacity described above and will have such responsibilities,
duties and authorities and will render such services of an executive and
administrative character reasonably consistent with his title as shall be
reasonably directed by the Board of Directors of the Company (the "Board"), all
in accordance with the terms and conditions of this Agreement and the strategic
plans and operating and capital budgets of the Company as developed and approved
by the Board. The Executive shall devote the Executive's best efforts, energies
and abilities and the Executive's full business time, skill and attention to the
business and affairs of the Company and such of its affiliates as are specified
by the Board. The Executive shall perform the duties and carry out the
responsibilities assigned to the Executive to the best of the Executive's
ability, in a diligent, trustworthy, businesslike and efficient manner for the
purpose of advancing the business of the Company and its affiliates and shall
adhere to any and all of the employment policies of the Company. The Company
acknowledges that the Executive currently serves as a member of the Board of
Directors of companies other than that of the Company, provided that those
companies do not Compete in the Business with the Company. The Executive agrees
that during any given month, such activities will not consume more than two
business days Nothing in this Section 2 shall be deemed to prohibit the
Executive from making Permitted Investments (as defined in Section 6.b. below)
or attending to such charitable and/or civic activities as are deemed
appropriate by the Executive; provided that such activities shall not detract
from the Executive's duties and obligations under this Agreement. The Executive
shall report to the Board and will work with any and all Company senior
executives on an "as needed basis," as deemed appropriate by the Executive, with
respect to activities of a strategic nature, such as corporate development
projects, capital raising, and certain business development initiatives
3. Compensation and Benefits. As consideration for the services to be provided
by the Executive, the Company shall pay to the Executive, and the Executive
agrees to accept for all such services, compensation as follows:
a. Base Salary. Commencing on the date hereof and continuing through
the balance of the Employment Term, the Company shall pay to the Executive base
compensation (the "Salary") at the rate of two hundred and forty thousand
dollars ($240,000) per year. The Salary, and all other compensation payable
hereunder, shall be paid in accordance with the Company's normal payroll
policies, and shall be subject to all applicable withholding taxes and any other
amounts required by law to be withheld. The Executive shall be entitled to
yearly increases in Salary, from time-to-time, as determined by the Board,
equivalent in percentage to the percentage increase in salary provided to the
Company's Chief Executive Officer and/or Chief Operating Officer, whichever is
greater. The Executive shall also be entitled to receive such other salary
increases as may be determined by the Board.
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x. Xxxxx of Options. The Company shall grant to the Executive, as of
April 30, 2004 (the "Options Date"), non-qualified stock options ("Options") to
purchase up to 1,200,000 shares of Company common stock, par value $.001
("Common Stock") at an exercise price per share equal to the closing price of
the shares of common stock of the Company on the Options Date pursuant to the
Company 2000 Stock Incentive Plan ("Plan"). The Company has provided the
Executive with a copy of the Plan and the Executive acknowledges that the
Executive has reviewed the Plan, is familiar with the terms and conditions of
the Plan and has had the opportunity to ask questions about the Plan. The
Options shall vest on the Options Date and the exercise period for the Options
granted pursuant to this Section 3 b. shall be for a period of five (5) years
from the date of grant, which is the Option Date. If (but without any obligation
to do so) the Company proposes to register any of its stock or other securities
under the Securities Act of 1933, as amended (except with respect to the filing
of a registration statement on Form S-4 or similar form) in connection with the
public offering of such securities solely for cash, the Company shall, at such
time, promptly give to the Executive written notice of such registration. Upon
the written request of the Executive given within thirty (30) days after mailing
of such notice by the Company in accordance with Section 16 hereof, the Company
shall, subject to the underwriting requirements, use its best efforts to cause
to be registered under the Securities Act of 1933, as amended all of the Options
that the Executive has requested to be registered. The Company shall have no
obligation to make any offering of its securities, or to complete an offering of
its securities that it proposes to make.
c. Bonus. The Executive may receive a bonus, if so determined by the
Board in its sole discretion. The payment of a bonus in any instance shall not
constitute an entitlement to a bonus on any other occasion.
d. Equity Participation Programs. The Executive shall be eligible to
participate in such option and/or equity participation programs as may be
implemented for employees of the Company. Such eligibility shall not constitute
an entitlement to a particular award under any such program, nor shall an award
on one occasion constitute an entitlement to an award on any other occasion.
Notwithstanding the foregoing, the Executive shall be entitled to receive
options in an amount at least equal to the number of options granted to the
Company's Chief Executive Officer or Chief Operating Officer, whichever is
greater.
e. Benefit Programs. The Executive will be immediately eligible to
participate on substantially the same basis as provided to all of the Company's
most highly paid executive officers, as a group, in any life, health,
hospitalization, or disability insurance policy or program maintained by the
Company, and any 401(k), profit sharing, retirement, or other fringe benefit
program maintained by the Company for such officers, in each case in accordance
with the terms of such policies, plans and programs.
f. Vacation. During the Employment Period, the Company will provide the
Executive four (4) weeks vacation per year (prorated for periods of less than a
full year); provided that all vacation must be used within the calendar year in
which the vacation accrues or it is forfeited.
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g. Business Expenses. During the Employment Period, the Company will
reimburse the Executive in accordance with Company policy for the Executive's
normal out-of-pocket expenses incurred in the course of performing the
Executive's duties hereunder. The Executive shall provide the Company with all
receipts and documentation supporting such expenses as may reasonably be
requested by the Company.
4. Termination by the Company.
a. Right to Terminate. In addition to the termination rights of the
Company set forth in Section 2, the Company has the right to terminate the
Employment Period (and, consequently, the Executive's employment under this
Agreement), by notice to the Executive in writing at any time, (i) for "Cause",
or (ii) without Cause for any or no reason, subject to the provisions of Section
5. Any such termination shall be effective upon the date specified in such
notice or, if no date is specified, on the date such notice is deemed served
pursuant to Section 16 below.
b. Cause Defined. "Cause" as used herein means the occurrence of any of
the following events:
(i) the willful failure or gross negligence of the Executive to
perform the Executive's duties or comply with reasonable
directions of the Board consistent with the Executive's title
and duties that continues unremedied for a period of thirty
(30) business days after the Company, by resolution of its
Board, has given written notice to the Executive specifying in
reasonable detail the Executive's failure to perform such
duties or comply with such directions;
(ii) the Executive's conviction of (A) a felony, (B) criminal
dishonesty or (C) any crime involving moral turpitude;
(iii) [the occurrence of any event applicable to the Executive and
set forth in Item 401(d)(1) through (4) or Item 401(f) of
Regulation S-K, if then applicable to the Company of
Regulation S-B, or other rule of similar applicability
promulgated by the Securities and Exchange Commission;
(iv) a material breach by the Executive of any of the provisions of
Section 6 or 7 of this Agreement; or
(v) a material breach by the Executive of any of the terms or
conditions of this Agreement (other than with respect to any
provisions of Sections 6 or 7 of this Agreement) that
continues unremedied for a period of thirty (30) business days
after the Company, by resolution of its Board, has given
written notice to the Executive specifying in reasonable
detail the Executive's breach of this Agreement.
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c. Death and Disability. Except as otherwise provided herein, this
Agreement and the obligations of the Company hereunder will terminate upon the
death or, at the Company's option, the disability of the Executive. For purposes
of this Section 4.c., "disability" shall mean that for a period of ninety (90)
consecutive days or four (4) months in any 12-month period the Executive fails
to substantially fulfill the duties set forth in Section 2 or hereafter assigned
to him because of physical, mental or emotional incapacity resulting from
injury, sickness or disease, as determined by an independent physician (whose
independence shall not be negated by reason of the payment of a reasonable fee
for his or her services) selected by the Company.
5. Compensation Following Termination.
a. If the Employment Period or this Agreement is terminated (i) by the
Company for Cause, (ii) pursuant to the provisions of Section 2, then the
Company shall have no further obligations hereunder or otherwise with respect to
the Executive's employment from and after the effective date of termination
(except payment of the Salary, bonus if any, and benefits described in Section 3
herein, in each case which have accrued through the effective date of
termination or expiration), and the Company shall continue to have all other
rights available, and Executive shall continue to have all obligations
hereunder, including without limitation, all rights under any provisions of
Sections 6 and 7 at law or in equity.
b. If the Employment Period or this Agreement is terminated by the
Company due to the disability of the Executive, as defined in Section 4.c., the
Executive shall be entitled to receive all Salary and other compensation earned
but unpaid through the date of termination, plus such amount(s), if any, as may
be payable to the Executive pursuant to any disability insurance maintained by
the Company.
c. If the Employment Period or this Agreement is terminated by the
Company due to the death of the Executive, the Executive's estate shall be
entitled to receive all Salary and other compensation earned but unpaid through
the date of termination.
d. Provided that the Executive continues to comply with each of the
provisions of Sections 6 and 7 of this Agreement during all the applicable
periods, if the Employment Period is terminated by the (i) Company without Cause
as described in Section 4.a.(ii) hereof or (ii) the Executive for "Good Reason",
as hereinafter defined the Executive shall be entitled to receive as severance
pay the greater of (i) the Executive's Salary hereunder for the period of time
which would have been remaining in the initial Employment Period or any renewal
period, as the case may be, or (ii) six months' Salary, in each case payable in
one lump sum within 30 days following termination.
e. For purposes hereof, "Good Reason" means the material reduction in,
or the assignment of duties to the Executive which would be materially
inconsistent with, the Executive's responsibilities, duties and authorities
described in Section 2.c. (other than as a result of the Executive's failure to
perform the Executive's duties and responsibilities in accordance with this
Agreement), which continues unremedied for a period of twenty (20) business days
after the Executive has given written notice to the Company specifying in
reasonable detail the relevant acts or omissions. It is expressly understood and
agreed that unless the Executive provides the written notice described in the
immediately preceding sentence within twenty (20) business days after the
Executive knows or has reason to know of the occurrence of any act or omission
of the type described in this Section 5.e., the Executive shall be deemed to
have consented thereto and such particular act or omission shall no longer
constitute or be capable of constituting Good Reason for purposes of this
Agreement.
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f. Provided that the Executive continues to comply with each of the
provisions of Sections 6 and 7 of this Agreement during all the applicable
periods, if before the first anniversary of the date of this Agreement the
Company elects not to renew the employment of the Executive, the Executive shall
be entitled to receive as severance pay six months' Salary, payable in one lump
sum within 30 days following termination.
g. Provided that the Executive continues to comply with each of the
provisions of Sections 6 and 7 of this Agreement during all the applicable
periods, if the Employment Period is terminated by the Executive or otherwise
upon a Change of Control (as hereinafter defined) of the Company, the Executive
shall be entitled to receive from the Company as severance an amount equal to
the greater of (i) the Executive's Salary for the period of time which would
have been remaining in the initial Employment Period or any renewal period, as
the case may be, or (ii) six months' Salary, in each case payable in one lump
sum within 30 days following termination.
h. For purposes of the preceding subsection, a "Change in Control"
shall mean the occurrence of one or more of the following events:
(i) a change in identity of a majority of members of the Company's
Board from those individuals constituting the Board on the
date set forth in the Preamble to this Agreement (without
including the Executive for purposes of this calculation);
(ii) the acquisition of fifty (50) percent or more of the
outstanding voting securities of the Company, where the
acquirer(s) own(s) beneficially less than fifteen (15) percent
of the outstanding voting securities of the Company as of the
date set forth in the Preamble to this Agreement;
(iii) the sale of all or substantially all of the Company's assets,
including sale of more than 50% of the stock or all or
substantially all of the assets of Phone1, Inc., or Globaltron
Communication Corporation, the Company's technology or Phone1
brand name other than in a "form over substance"
reorganization;
(iv) a merger, share exchange or similar business combination where
the Company is not the surviving entity to such combination,
other than in a "form over substance" reorganization.
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For purposes hereof, a Change in Control shall be deemed to have occurred on the
effective date of the event described in (i) through (iv) of this subsection g.
Provided that the Executive continues to comply with each of the provisions of
Sections 6 and 7 of this Agreement during all the applicable periods, if the
Employment Period is terminated in connection with a Change in Control, as
defined in Section 5.g., after which the Company is not the surviving entity,
then the Company shall provide the Executive with not less than 30 days prior
written notice of the effective date of the event and, at the option of the
Executive (and in addition to any rights the Executive may have hereunder) (i)
the Executive may sell the option to the Company at a price equal to the fair
market value (net of the exercise price of the option) of the underlying shares
of common stock as of the trading day immediately prior to the effective date of
the event, or (ii) the Executive may elect to have the options treated in the
manner that all other outstanding options are treated under the agreement
governing the subject event.
6. Restrictive Covenants.
a. The Executive's Acknowledgment. The Executive agrees and
acknowledges that in order to assure that the Company and its affiliates will
retain their respective value and that of the business of the Company and each
of its affiliates, it is necessary that Executive undertake not to utilize the
special knowledge of the Business the Executive has acquired or may acquire and
the relationships with their customers, suppliers and employees to compete with
the Company and its affiliates. The Executive further acknowledges that:
(i) the Executive is one of a limited number of persons who will
develop the business of the Company and its affiliates;
(ii) the Executive will occupy a position of trust and confidence
with the Company and its affiliates during the Executive's
employment under this Agreement, the Executive has and will
continue to become familiar with the proprietary and
confidential information of the Company and its affiliates;
(iii) the agreements and covenants contained in this Section 6 are
essential to protect the Company, its affiliates and the
goodwill of the Business and are an express condition
precedent to the willingness of the Company to sign this
Agreement;
(iv) the Company and its affiliates would be irreparably damaged if
the Executive were to provide services to any person or entity
in violation of the provisions of this Agreement;
(v) the Company operates its Business on an international basis
and the Company would be irreparably damaged if the Executive
were to provide services in the Business any where in the
world;
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(vi) the scope and duration of the provisions of this Section 6,
and of Section 7 are reasonably designed to protect a
protectable interest of the Company and its affiliates and are
not excessive in light of the circumstances; and
(vii) the Executive has a means to support the Executive and the
Executive's dependents, if any, other than engaging in the
activities prohibited by this Section 6.
b. Non-Compete. The Executive hereby agrees that during the Term of
this Agreement, except on behalf of the Company and its affiliates in accordance
with this Agreement, the Executive shall not, directly or indirectly, as
employee, agent, consultant, stockholder, director, partner or in any other
individual or representative capacity, own, operate, manage, control, engage in,
invest in or participate in any manner in, act as a consultant or advisor to,
render services for (alone or in association with any person, firm, corporation
or entity), or otherwise assist any person or entity that engages in or owns,
invests in, operates, manages or controls any venture or enterprise that
directly or indirectly engages or proposes to engage in the Business anywhere in
which the Company operates (collectively the "Territory"); provided however,
that nothing contained herein shall be construed to prevent the Executive from
(i) investing in stock or other securities of any public or private enterprise
provided that such investment does not require active participation by the
Executive and such enterprise does not engage in any activity competitive with
the business now or hereafter conducted by the Company ("Permitted
Investments"), or (ii) attending to such charitable and/or civic activities as
are deemed appropriate by the Executive; provided that such activities shall not
detract from the Executive's duties and obligations under this Agreement.
c. Non-Solicitation. Without limiting the generality of the provisions
of Section 6.b. above, the Executive hereby agrees that for a period of six
months after the Termination Date, except on behalf of the Company and its
affiliates in accordance with this Agreement, the Executive will not, directly
or indirectly, as employee, agent, consultant, principal or otherwise, (A)
solicit any Business from or in any way transact or seek to transact any
Business with or otherwise seek to influence or alter the relationship between
the Company or any of its affiliates with any person or entity to whom the
Company or any of its affiliates provided Business related services (I) at any
time during the one year period preceding the Termination Date or (II) if there
has been no Termination Date, at any time during the Employment Period or (B)
solicit for employment or other services or otherwise seek to influence or alter
the relationship between the Company or any of its affiliates of any person who
is or was an employee of the Company or any of its affiliates (I) at any time
during the one year period preceding the Termination Date or (II) if there has
been no Termination Date, at any time during the Employment Period.
d. Blue-Pencil. If any court of competent jurisdiction shall at any
time deem the term of this Agreement or any particular Restrictive Covenant too
lengthy or the Territory too extensive, the other provisions of this Section 6
shall nevertheless stand, the period of restriction shall be deemed to be the
longest period permissible by law under the circumstances and the Territory
shall be deemed to comprise the largest territory permissible by law under the
circumstances. The court in each case shall reduce the period of restriction
and/or Territory to permissible duration or size.
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7. Treatment and Ownership of Confidential Information.
a. Confidentiality. The parties hereto acknowledge that the Executive
shall or may be making use of, acquiring and adding to Confidential Information
(as that term is defined in subparagraph (b) below). The Executive covenants and
agrees that during the Employment Period and at all times thereafter he shall
not, except with the prior written consent of the Company, or except if he is
acting during the Employment Period solely for the benefit of the Company or any
of the affiliates in connection with the Company's or any of the affiliates'
business and in accordance with the Company's business practices and policies,
at any time, disclose, divulge, report, transfer or use, for any purposes
whatsoever, any such Confidential Information, including Confidential
Information obtained, used, acquired or added by, or disclosed to, the Executive
prior to the date of this Agreement, provided that such Confidential Information
has not subsequently entered the public domain. The Executive further
acknowledges that the Confidential Information constitutes valuable, special and
unique assets of the Company.
b. Confidential Information Defined. For purposes of this Agreement,
the term "Confidential Information" shall mean all of the following materials
and information which the Executive receives, conceives or develops or has
received, conceived or developed, in whole or in part, in connection with the
Executive's affiliation with the Company. Excluded from Confidential Information
is any previously confidential information which has subsequently become public
information.:
(i) The contents of any manuals or other written materials of the
Company or any of its affiliates;
(ii) The names of actual or prospective clients, customers,
suppliers, or persons, firms, lenders, or persons, firms,
corporations, or other entities with whom the Executive may
have or has had contact on behalf of the Company or any of its
affiliates or to whom any other employee of the Company or any
of its affiliates has provided goods or services at any time;
(iii) The terms of various agreements between the Company or any of
its affiliates, and any third parties;
(iv) The contents of actual or prospective customer or client
records, which customer and client lists and records shall not
only mean one or more of the names and addresses of the
customers of the Company or any of its affiliates, but shall
also encompass any and all information whatsoever regarding
them;
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(v) Any data or database, or other information compiled by the
Company or any of its affiliates, including, but without
limitation, information concerning the Company or any of its
affiliates, or any business in which the Company or any of its
affiliates is engaged or contemplates becoming engaged, any
company which the Company or any of its affiliates engages in
business, any customer, prospective customer, or other person,
firm or corporation to whom or which the Company or any of its
affiliates has provided goods or services or to whom or which
any employee of the Company or any of its affiliates has
provided goods or services on behalf of the Company or any of
its affiliates, or any compilation, analysis, evaluation or
report concerning or deriving from any data or database, or
any other information;
(vi) All policies, procedures, strategies and techniques regarding
training, marketing and sales, either oral or written, and
assorted lists containing information pertaining to lenders,
customers and/or prospective customers; and
(vii) Any other information, data, training methods, formulae,
know-how, show-how, source code, subject code, copyright,
trademarks, patents or knowledge of a confidential or
proprietary nature observed, received, conceived or developed
by the Executive in connection with the Executive's
affiliation with the Company.
c. Exclusions. Excluded from the Confidential Information and therefore
not subject to the provisions of this Agreement shall be any information which
(i) is or becomes generally available to the public through no breach or fault
of the Executive; provided that this exception shall apply only from and after
the date the information became generally available to the public, and (ii) the
Executive can establish was in the Executive's possession at the time of
disclosure and was not previously acquired directly or indirectly from the
Company, provided that this exception shall apply only from and after the date
that the information is disclosed to the Executive by a third party or was in
the Executive's possession. Specific Confidential Information shall not be
deemed to be within the foregoing exceptions merely because it is embraced by,
or contained or referenced in, more general information in the public domain.
Additionally, any combination of features shall not be deemed to be within the
foregoing exceptions merely because individual features are in the public
domain.
d. Ownership. The Executive covenants and agrees that all right, title
and interest in any Confidential Information shall be and shall remain the
exclusive property of the Company and its affiliates, as the case may be. The
Executive covenants that the Executive has disclosed to the Company all
Confidential Information developed in whole or in part by the Executive within
the scope of this Agreement and has assigned or will assign to the Company any
right, title or interest the Executive may have in such Confidential
Information. The Executive covenants that the Executive has turned over to the
Company all physical manifestations of the Confidential Information in his
possession or under his control. The Executive agrees to promptly disclose to
the Company all Confidential Information hereafter developed in whole or in part
by the Executive within the scope of this Agreement and to assign to the Company
or any of the affiliates, as the Company determines in its sole discretion, any
right, title or interest the Executive may have in such Confidential
Information.
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8. Effect of Termination. If this Agreement or the Employment Period expires or
is terminated for any reason, then, notwithstanding such termination, those
provisions contained in Sections 6 and 7 hereof shall remain in full force and
effect.
9. Remedies. The Executive acknowledges and agrees that the covenants set forth
in Section 6 and 7 of this Agreement are reasonable and necessary for the
protection of the business interests of the Company and its affiliates, that
irreparable injury will result to the Company and its affiliates if the
Executive breaches any of the terms of Sections 6 or 7, and that in the event of
the Executive's actual or threatened breach of any provisions of Section 6 or 7,
the Company and its affiliates will have no adequate remedy at law. The
Executive accordingly agrees that in the event of any actual or threatened
breach by the Executive of any of the provisions of Section 6 or 7, the Company
and its affiliates shall be entitled to seek injunctive relief, specific
performance and other equitable relief, without bond and without the necessity
of showing actual monetary damages, subject to hearing as soon thereafter as
possible. Nothing contained herein shall be construed as prohibiting the Company
and its affiliates from pursuing any other remedies available to them for such
breach or threatened breach, including but not limited to the recovery of
damages.
10. Indemnification. The Company hereby indemnifies and holds the Executive
harmless, to the fullest extent permitted by applicable law, from and against
all suits, actions, claims, actions, proceedings, costs and expenses, including
reasonable attorneys' fees, arising out of the Executive's performance of his
duties to the Company. In addition, the Executive shall be entitled to enter
into such Indemnification Agreements as the Company enters into with members of
its Board, and to receive benefits, to the extent reasonably available, no less
favorable with respect to indemnification than the benefits provided to such
Board members.
11. The Executive's Representations and Warranties.
a. The Executive represents and warrants to the Company that:
(i) he has not been subject to any litigation or administrative
proceedings, and
(ii) he is free of known physical and mental disabilities that
would, with or without reasonable accommodations create an
undue hardship for the Company or any of its affiliates,
impair his performance hereunder and he is fully empowered to
enter and perform his obligations under this Agreement;
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(iii) he is under no restrictive covenants to any person or entity
that will be violated by his entering into and performing this
Agreement; and
(iv) he is not the subject of any event described in Item 401(d)(1)
through (4) of Regulation S-B or Item 401(f) of Regulation
S-K, if then applicable to the Company, promulgated by the
Securities and Exchange Commission.
b. The Executive shall indemnify the Company on demand for and against
any and all judgments, losses, claims, damages, expenses and costs (including
without limitation all legal fees and costs, even if incident to appeals)
incurred or suffered by the Company as a result of any breach by the Executive
of any of these representations and warranties.
12. Binding Effect. Except as herein otherwise provided, this Agreement shall
inure to the benefit of and shall be binding upon the parties hereto, their
personal representatives, heirs successors and assigns.
13. Severability. If any provision of any of the Agreements is invalid, illegal
or unenforceable under any applicable statute or rule of law, it is to that
extent to be deemed omitted. The remainder of the Agreement containing the
invalid, illegal or unenforceable provision will be valid and enforceable to the
maximum extent possible.
14. Governing Law. This Agreement shall be governed and construed in accordance
with the laws of the State of Florida, without giving effect to any conflict of
law principles.
15. Entire Agreement. This Agreement contains the entire understanding between
the parties and this Agreement may not be changed or modified except by an
Agreement in writing signed by all the parties hereto.
16. Notice. All notices under the Agreements are to be delivered by (i)
depositing the notice in the mail, using registered mail, return receipt
requested, addressed to the address set forth in the Agreements for the party or
to any other address as the party may designate by providing notice, (ii)
facsimile transmission by using the facsimile number set forth in the Agreements
for the party or any other facsimile number as the party may designate by
providing notice, (iii) overnight delivery service addressed to the address set
forth in the Agreements for the party or to any other address as the party may
designate by providing notice, or (iv) hand delivery to the individual
designated in the relevant Agreement or to any other individual as the party may
designate by providing notice. The notice will be deemed delivered (i) if by
registered mail, four days after the notice's deposit in the mail, (ii) if by
telecopy, on the date the notice is delivered, (iii) if by overnight delivery
service, on the day of delivery, and (iv) if by hand delivery, on the date of
hand delivery. The addresses for such communications shall be as follows:
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If to the Executive:
000 Xxxxxxx Xxxx, Xxxx XX0,
Xxx Xxxxxxxx XX 00000
Telephone:
Telefax:
If to the Company:
Phone1Globalwide, Inc.
000 X. Xxxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxxxxxx, President
Telephone: (000) 000-0000
Telefax: (000) 000-0000
Any Party may change the address to which notices, requests, demands, claims,
and other communications hereunder are to be delivered by giving the other
Parties notice in the manner herein set forth.
17. Venue. The Parties acknowledge that a substantial portion of negotiations
and anticipated performance and execution of this Agreement occurred or shall
occur in the City and County of Miami Dade, Florida, and that, therefore, each
of the Parties irrevocably and unconditionally:
(i) agrees that any suit, action or legal proceeding arising out
of or relating to this Agreement may be brought in the courts
of record of the State of Florida in the City of Miami and
County of Miami-Dade or the court of the Southern United
States of Florida, Southern Division;
(ii) consents to the jurisdiction of each such court in any suit,
action or proceeding;
(iii) waives any objection which it may have to the laying of venue
of any such suit, action or proceeding in any of such courts;
and
(iv) agrees that service of any court paper may be effected on such
Party by mail, as provided in this Agreement, or in such other
manner as may be provided under applicable laws or court rules
in said state.
18. Prevailing Parties. If any legal action or other proceeding is brought for
the enforcement of this Agreement, or because of an alleged dispute, breach,
default or misrepresentation in connection with any provision of this Agreement,
the successful or prevailing party or parties shall be entitled to recover
reasonable attorneys' fees, sales and use taxes, court costs and all expenses
even if not taxable as court costs (including, without limitation, all such
fees, taxes, costs and expenses incident to arbitration, appellate, bankruptcy
and post-judgment proceedings), incurred in that action or proceeding, in
addition to any other relief to which such party or parties may be entitled.
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19. Expenses. Each party shall bear their own respective expenses incurred in
connection with this Agreement and with all obligations required to be performed
by each of them under this Agreement.
THE EXECUTIVE ACKNOWLEDGES THAT THE EXECUTIVE HAS READ THIS AGREEMENT,
UNDERSTANDS EACH OF ITS TERMS AND CONDITIONS INCLUDING ANY TAX OR OTHER
CONSEQUENCES, AND HAS THE OPPORTUNITY TO CONSULT INDEPENDENT LEGAL COUNSEL OF
THE EXECUTIVE'S CHOICE PRIOR TO EXECUTING THIS AGREEMENT.
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IN WITNESS WHEREOF, this Agreement has been duly signed by the
Executive and on behalf of the Company as of the day and year first above
written.
THE COMPANY:
PHONE1GLOBALWIDE, INC.
By: _____________________
Xxxxx Xxxxxxxxx
Chief Executive Officer
THE EXECUTIVE:
____________________________
