Exhibit 10.22
EMPLOYMENT AGREEMENT
AGREEMENT dated as of March 29, 2001 (the Effective date"), by and between
Covista Communications, Inc., a New Jersey corporation, (the "Company" or
"Employer") , with offices at 000 Xxxxx Xxxx, Xxxxxx Xxxxx, Xxx Xxxxxx 00000 and
Xxxxx X. Xxxxxx, 000 Xxxxxx Xxxx, Xxxxxxxxx, XX 00000 ("Executive").
ARTICLE I
WITNESSETH
WHEREAS, the Company and Executive desire to enter into this Employment
Agreement (the "Agreement") in order to set forth the terms and conditions of
Executive's employment, intending to supersede any prior employment agreement,
written or oral, whether with the Company or any of its subsidiaries.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein and other good and valuable consideration, receipt of which is
acknowledged, the parties hereto agree as follows:
1. DUTIES AND RESPONSIBILITIES. The duties and responsibilities of
Executive shall be of a Chief Operating Officer as the same shall be assigned to
him, from time to time, by the Chief Executive Officer or by the Board of
Directors of the Employer. Executive recognizes that, during the period of his
employment hereunder, he owes an undivided duty of loyalty to Employer and
agrees to devote all of his business time and attention to the performance of
said duties and responsibilities and to use his best efforts to promote and
develop the business of Employer and its affiliates. It is the intention of the
Employer that executive shall be appointed Chief Operating Officer of the
Employer to serve at the pleasure of Employer's Board of Directors, reporting on
a day-to-day basis directly to the Chief Executive Officer. For the term of this
Agreement, Executive shall be employed, and shall perform the major duties of
his position, at the offices of Employer located in Little Falls, New Jersey, or
at such other location in northern New Jersey as shall then serve as the
corporate headquarters and principal place of business of Employer. During the
entire employment period as hereinafter defined, Executive shall serve as Chief
Operating Officer and as a member of the Board of Directors of Employer and its
affiliates upon due appointment or election in accordance with the by-laws of
such entities, which appointment or election shall not unreasonably be delayed,
and shall serve as a member of any committee of any such Board of Directors to
which he may be elected or appointed, without additional compensation.
2. EMPLOYMENT PERIOD. For a period commencing on the Effective Date hererof
and ending on the second anniversary of the Effective Date hereof (the
"Employment Period"), Employer hereby employs Executive in the Chief Operating
Officer capacity herein set forth. Executive agrees, pursuant to the terms
hereof, to serve in such capacity for the Employment Period. This Agreement and
the Employment Period shall be automatically extended for additional one (1)
year periods (each a "Successive Employment Period") unless a party, by written
notice as herein provided, notifies the other party by a date which is not less
than ninety (90) days prior to the expiration of the Employment period or any
Successive Employment Period that there shall be no extension or further
extension of this Agreement.
3. COMPENSATION.
(a) For all services performed by Executive for the Company during the
Employment period or any Successive Employment Period, the Company shall pay
Executive, in accordance with the normal pay practice of the Company, a base
Salary of $250,000 per annum, payable not less frequently than in equal monthly
installments, which Salary may be increased annually, effective as of an
anniversary of the date hereof during the Employment Period or any Successive
Employment Period, at the sole discretion of the Board of Directors. In addition
to the base Salary, the Company shall pay to Executive a one-time signing bonus
in the amount of $24,000.00, receipt of which is hereby acknowledged.
(b) During each year of the Employment Period and any Successive Employment
Period, Executive shall be eligible to receive a bonus ("Bonus") in an amount
not to exceed one hundred (100%) percent of his then effective base Salary, but
in any event shall receive the same percentage bonus as the Chief Executive
Officer of the Company and not less than fifty percent (50%) of his then
effective base Salary. Any bonus in excess of fifty percent (50%) of base Salary
shall be predicated upon Employer's attainment of Annual Revenue and Earnings
Targets as well as management goals determined by the Board of Directors for
each twelve-month period covered by the Employment period and any Successive
Employment Period, after good faith negotiations with Executive to be completed
within sixty (60) days after the commencement of each such period.
(c) Executive may also receive other bonus payments determined at the sole
discretion of the Board of Directors ("Discretionary Bonus")
(d) The Bonus compensation, if any, to be paid pursuant to paragraph 3(b)
shall be paid as promptly as practicable following the availability of the
financial statements of the Company relating to the applicable period, but in no
event later than ninety (90) days after the end of the applicable twelve-month
period.
(e) During the Employment Period, Executive shall be entitled to
perquisites, including, without limitation, a private office, secretarial,
computer and other support services and facilities consistent with his position.
Executive shall be entitled to business class airline travel on flights over
four (4) hours duration while engaged in Company business.
(f) Executive shall also be entitled to the following benefits:
(i) Four (4) weeks of paid vacation for each twelve (12) months of
the Employment Period, or such greater period as may be approved
from time to time by the Company's Board of Directors or the
Compensation Committee thereof; however, Executive shall not be
compensated for any unused vacation days;
(ii) paid holidays as provided to the Company's other executive
employees;
(iii) participation in such employee benefit plans to which executive
employees of the Company, their dependents and beneficiaries
generally are entitled during the Employment Period and any
Successive Employment Period, including, without limitation,
health insurance, disability and life insurance as specified in
Paragraphs 5 and 6 below, pension and profit sharing plans and
other present or equivalent successor plans and practices of the
Company for which executive employees, their dependents and
beneficiaries are eligible; and
(iv) reimbursement of Executive's business and professional dues.
-2-
(g) in addition to such stock options or other equity incentives as the
Company's Board of Directors, in its sole discretion, may at any time grant or
award to Executive, the Executive shall be granted an Incentive Stock Option to
purchase 250,000 shares of the Company's Common Stock at a price of $2.00 per
share, which shall vest and be exercisable as follows:
(i) 24,999 options on each six (6) month anniversary of the effective
date of this Agreement for a total period of five (5) years,
amounting to ten (10) equal installments; PROVIDED THAT
(ii) in the event that the Employment Period or any Successive
Employment Period is terminated for any reason other than Cause
as defined in Paragraph 7(a) below, either by Executive or by
Company, prior to the expiration of five (5) years from the
effective date hereof, then, in addition to the vesting provided
for in Subparagraph 3(g)(i) above, Executive shall be entitled to
immediate vesting of an additional 16,668 shares for each
completed six-month period that this Agreement shall have been in
effect up to the date of such termination; and PROVIDED FURTHER
THAT
(iii) if the Company fails to extend the term of Executive's
employment past the initial Employment Period as specified in
Paragraph 2 above, then all options then remaining unvested at
the time of expiration of the initial Employment Period shall
become immediately vested; and PROVIDED FURTHER THAT
(iv) if either (x) the Company terminates the employment of Executive
at any time without Cause, as defined in Paragraph 7(a) below, or
(y) the Executive terminates his Employment at any time With Good
Reason, as defined in Paragraph 7(c) below, then all options then
remaining unvested at the time of such termination without Cause
or With Good Reason shall become immediately vested; and PROVIDED
FURTHER THAT
(v) upon the occurrence of a Change in Control, as defined in
Paragraph 7(b)2 below, all options then remaining unvested at the
time of such Change in Control shall become immediately vested.
(h) In the event that either (i) the Company terminates the employment of
Executive without Cause, as defined in Paragraph 7(a) below, or (ii) the
Executive terminates his employment at any time With Good Reason, as defined in
Paragraph 7(c) below, then Executive shall be entitled to receive the balance of
all unpaid base Salary plus bonus and benefits to which he would have been
entitled hereunder had the employment not been so terminated.
4. REIMBURSEMENT OF EXPENSES. The Company recognizes that Executive, in
performing executive's functions, duties and responsibilities under this
Agreement, may be required to spend sums of money in connection with those
functions, duties and responsibilities for the benefit of the Company and,
accordingly, shall reimburse Executive for travel and other out-of-pocket
expenses reasonably and necessarily incurred in the performance of his
functions, duties and responsibilities hereunder upon submission of written
statements and/or bills in accordance with the then regular procedures of the
Company.
-3-
5. DISABILITY. In the event that Executive shall be unable to perform
because of illness or incapacity, physical or mental, all the functions, duties
and responsibilities to be performed by him hereunder for a consecutive period
of three (3) months or for a total period of four (4) months during any
consecutive twelve (12) month period during the Employment Period or any
Successive Employment Period, the Company may terminate this Agreement effective
on or after the expiration of such period (the "Disability Period") upon fifteen
(15) business days' written notice to Executive specifying the termination date
(the "Disability Termination Date"). Executive shall be entitled to receive his
base Salary and a pro-rated portion of any Bonus earned to the Disability
Termination Date. Disability under this paragraph, shall be determined by a
physician who shall be selected by the Company and reasonably approved by the
Executive. Such approval shall not be unreasonably withheld or delayed, and a
physician shall be deemed to be approved unless he or she is disapproved in
writing by the Executive within ten (10) days after his or her name is
submitted. The Company may obtain disability income insurance for the benefit of
Executive in such amounts as the Company may determine.
6. DEATH. In the event of the death of Executive during the Employment
period or a Successive Employment Period, this Agreement and the employment of
Executive hereunder shall terminate on the date of death of Executive.
Executive's heirs or legal representatives shall be entitled to receive his base
Salary and a prorated portion of any Bonus earned to the date of his death.
7. TERMINATION.
(a) The Company may discharge Executive for cause at any time. Cause for
discharge shall include (i) a material breach of this Agreement by Executive,
but only if such breach is not cured within thirty (30) days following written
notice by the Company to Executive of such breach, assuming such breach may be
cured; (ii) Executive is convicted of any act or course of conduct involving
moral turpitude; or (iii) Executive engages in any act or course of conduct
constituting an abuse of office or authority which significantly adversely
affects the business or reputation of the Company. Any written notice by the
Company to Executive pursuant to this paragraph 7(a) shall set forth, in
reasonable detail, the facts and circumstances claimed to constitute the cause.
If, during the Employment Period or any Successive Employment period, Executive
is discharged for Cause, the Company, without any limitations on any remedies it
may have at law or equity, shall have no liability for base Salary or any other
compensation and benefits to Executive after the date of such discharge, and all
stock options that remain unexercised as of the date of such termination shall
de deemed forfeited; PROVIDED that (x) Executive shall be entitled to retain all
stock options that shall have vested and been exercised up to the date of such
discharge, and (y) during the 30-day cure period provided for in this Paragraph
7(a), Executive shall be entitled to vest and to exercise those additional
options provided for in Paragraph 3(g)(ii) above, based upon completed six (6)
month intervals of employment up to the date of discharge as specified therein.
(b) Change in Control
(i) After a Change in Control (as defined below) of the Company has
occurred, all of Executive's stock options, stock appreciation
rights, restricted stock grants or stock bonuses and similar
benefits shall be deemed to vest in full on the effective date of
such Change of Control, notwithstanding any provision to the
contrary in any applicable agreement or plan. If the Company (or
any successor thereto) terminates Executive's employment with the
Company within six (6) months after the Change in Control,
Executive shall be entitled to receive the sum of (1) his base
Salary for the remainder of the then-current Employment Period or
Successive Employment Period (but in no event less than twelve
(12) months' then-current base Salary), (2) Bonus compensation,
pro-rated to the date of termination, (3) incentive stock
compensation, (4) benefits, (5) perquisites and
-4-
awards, including, without limitation, immediate vesting of
benefits and awards under the Company's stock option, stock
appreciation, restricted stock, stock bonus or similar plan to
the extent not theretofore vested, and (6) any benefits in the
Company pension or retirement plan or program, accrued through
the date Executive's employment with the Company, that would
otherwise terminate pursuant to the terms thereof (the
"Termination Date") (all of the foregoing six elements,
individually and collectively, the "Termination Compensation").
Notwithstanding the foregoing, if Executive is offered an
employment agreement (`New Agreement") by the Company within
sixty (60) days after the Change in Control, having a term of not
less than twelve (12) months on terms substantially similar to
those provided herein, Executive shall not be entitled to the
Termination Compensation unless within three (3) months after
Executive's acceptance of the New Agreement, Executive determines
to sever his employment relationship with the Company, in which
event, the Executive shall be entitled to the Termination
Compensation. The amount of the Termination Compensation shall be
computed, at the expense of the Company, by the independent
public accountants regularly employed by the Company immediately
prior to the Change in Control (the "Accountants"), whose
computation shall be conclusive and binding upon Executive and
the Company in the absence of manifest error.
(ii) For purposes hereof, a "Change in Control" shall be deemed to
have occurred if: (aa) any "person" or "group" (as such terms are
used in Sections (3), 3(a), (9) and 13(d) of the Securities
Exchange Act of 1934, as amended (the "Act") other than Xxxxx
Xxxxx III or any of his affiliates becomes a "beneficial owner"
(as such term is used in Rule lad-s promulgated under the Act),
after the date hereof, directly or indirectly, of securities of
the Company representing fifty (50%) percent or more of the
combined voting power of the Company's then outstanding
securities; (bb) a change in "control" of the Company (as the
term "control" is defined in rule 12b-2 or successor rule
promulgated under the Act) shall have occurred; (cc) the majority
of the Board of Directors, as such entire Board of Directors is
composed as of the date hereof, no longer serve as directors of
the Company, except that there shall not be counted toward such
majority who no longer serve as directors Executive, if elected a
director of the Company, or any director who ceased to serve
either prior to the date of a Change in Control, for any reason,
or at any other time due to voluntary resignation (other than in
connection with an event described in (dd) or (ee) below), death,
disability or termination for cause; (dd) the shareholders of the
Company approve a plan of complete liquidation of the Company or
an agreement for the sale or disposition by the Company of all or
substantially all of the Company's assets; or (ee) the
shareholders of the Company approve a merger or consolidation of
the Company with any other company, other than a merger or
consolidation which would result in the combined voting power of
the Company's voting securities outstanding immediately prior
thereto continuing to represent (either by remaining outstanding
or by being converted into voting securities of the surviving
entity) more than fifty (50%) percent of the combined voting
power of the voting securities of the Company or such surviving
entity outstanding immediately after such merger or
consolidation; provided, however, that no Change in Control shall
be deemed to have occurred if any plan of liquidation, sale of
assets, merger or consolidation provided in (dd) and (ee)
-5-
above is not consummated. Notwithstanding the foregoing, any
transaction involving a leveraged buyout or other acquisition of
the Company which would otherwise constitute a Change in Control,
in which Executive participates in the surviving or successor
entity (other than solely as an employee or consultant), shall
not constitute a Change in Control.
(iii) Notwithstanding anything in this Agreement to the contrary,
Executive shall have the right, prior to the receipt by him of
any amounts due hereunder, to waive the receipt thereof or,
subsequent to the receipt by him of any amounts due hereunder, to
treat some or all of such amounts as a loan from the Company
which Executive shall repay to the Company, within ninety (90)
days from the date or receipt, with interest at the rate provided
in Section 7872 of the Internal revenue Code of 1986, as amended
(the "Code"). Notice of any waiver or treatment of amounts
received as a loan shall be given by Executive to the Company in
writing and shall be binding upon the Company.
(iv) It is intended that the "present value" of the payments and
benefits to Executive, whether under this Agreement or otherwise,
which are included in the computation of "parachute payments"
shall not, in the aggregate, exceed 2.99 times the "base amount"
(the terms "present value", "parachute payments" and "base
amount" being determined in accordance with Section 280G of the
Code). However, if Executive receives payments or benefits from
the Company prior to payment of the Termination Compensation
which, when added to the Termination Compensation, would, in the
opinion of the Accountants, subject any of the payments or
benefits to Executive to the excise tax imposed by Section 4999
of the Code, the Company shall be responsible for payment of such
tax and shall gross-up the payment to Executive, accordingly, so
as to make the impact of such tax neutral with respect to
payments made to Executive.
(c) TERMINATION BY EXECUTIVE WITH GOOD REASON. The employment of Executive
under this Agreement shall be deemed to have been terminated by Executive for
"Good Reason" if Executive voluntarily terminates employment following the
occurrence of (i) a material breach by the Company of any of its obligations
under this Agreement; PROVIDED, HOWEVER, that Executive shall provide written
notice of such material breach within thirty (30) days after Executive's
discovery of such material breach and the Company shall have the opportunity to
cure such default within thirty (30) days after receipt of such written notice,
and if the Company does not cure the default within such time, then Executive's
employment shall be deemed to have been terminated for Good Reason by Executive,
thirty (30) days after receipt of such written notice by the Company, or such
shorter period as the Company may elect; or (ii) a material diminution of job
responsibilities, reporting assignment or job title for any reason other than
Cause as defined in Section 7(a) above; or (iii) relocation of the headquarters
and principal place of business of the Company outside of northern New Jersey,
the Borough of Manhattan in New York City, or Westchester or Nassau Counties,
New York, but only in the event that Executive is required to relocate his
principal office to such relocated headquarters as a condition for retaining his
position as Chief Operating Officer of the Company. No resignation or other
voluntary termination by Executive other than pursuant to this Paragraph 7(c)
shall be deemed under any circumstances to be a termination with Good Reason or
a "constructive termination".
8. DISCLOSURE OF CONFIDENTIAL INFORMATION. "Confidential Information" means
all information known by Executive, because of employment by the Company, about
the Company's
-6-
business plans, present or prospective customers, vendors, products, processes,
services or activities, including the costing and pricing of such services or
activities. Confidential Information does not include information generally
known, other than through breach of a confidentiality agreement with the
Company, in the industry in which the Company engages or may engage. Executive
will not, during or after the Employment Period, directly or indirectly, use or
disclose any Confidential Information, except in the performance of Executive's
duties for the Company, or to other persons as directed by the Company.
Executive will use reasonable efforts to prevent unauthorized use or disclosure
of Confidential Information. Upon termination of employment with the Company,
Executive will deliver to the Company all writings relating to or containing
Confidential Information, including, without limitation, notes, memoranda,
letters, drawings, diagrams, and printouts, including any tapes, discs or other
forms of recorded information. If Executive violates any provision of this
paragraph during or after the Employment Period or any Successive Employment
Period, the Company specifically reserves the right, in appropriate
circumstances, to seek full indemnification from Executive should the Company
suffer any monetary damages or incur any legal liability to any person as a
result of the disclosure or use of Confidential Information by Executive in
violation of this paragraph.
9. RESTRICTIVE COVENANT.
(a) Prohibited Activities. Except in the case of termination of Employment
(y) by the Company without Cause, or (z) by Executive with Good Reason,
Executive agrees that he shall not (unless he has received the prior written
consent of the Company), during the period beginning on the date of termination
of employment and ending one (1) year thereafter, directly or indirectly, for
any reason, for his own account or on behalf of or together with any other
person or firm:
(i) engage in any capacity or as an owner or co-owner of or investor
in, whether as an independent contractor, consultant or advisor,
or as a representative of any kind, in any business selling any
products or providing any services in competition with the
Company; provided, however, that Executive may own not more than
five percent (5%) of the outstanding securities of any class of
any corporation engaged in any such business, if such securities
are listed on a national securities exchange or regularly traded
in the over-the-counter market by a member of a national
securities association;
(ii) hire or solicit for employment or call, directly or indirectly
through any person or firm, on any person who is at that time (or
at any time during the one year prior thereto) employed by or
representing the Company with the purpose or intent of attracting
that person from the employ of the Company;
(iii) call on, solicit or perform services for, directly or indirectly
through any person or firm, any person or firm that at that time
is, or at any time within one year prior to that time was, a
customer of the Company or any prospective customer that had or,
to the knowledge of the Executive, was about to receive a
business proposal from the Company, for the purpose of soliciting
or selling any product or service in competition with the
Company; or
(iv) call, directly or indirectly through any person or firm, on any
entity which has been called on by the Company in connection with
a possible acquisition by the Company, with the knowledge of that
entity's status as such an acquisition candidate, for the purpose
of acquiring that entity or arranging the acquisition of that
entity by any person or firm other than the Company.
-7-
(b) Damages. Because of (i) the difficulty of measuring economic losses to
the Company as a result of any breach by the Executive of the covenants in
Paragraph 9(a), and (ii) the immediate and irreparable damage which could be
caused to the the Company for which it would have no other adequate remedy, the
Executive agrees that the Company may enforce the provisions of Paragraph 9(a)
by injunction and restraining order against the Executive if he breaches any of
said provisions, without necessity of providing a bond or other security.
(c) Reasonable Restraint. The parties hereto agree that Paragraphs 9(a) and
9(b) impose a reasonable restraint on the Executive in light of the activities
and business of the Company on the date hereof and the current business plans of
the Company.
ARTICLE II
10. OWNERSHIP OF INVENTIONS. Discoveries and Improvements. Executive shall
promptly disclose in writing to the Board of Directors of the Company all
inventions, discoveries, and improvements conceived, devised, created, or
developed by Executive in connection with his employment (collectively,
"Invention"), and Executive shall transfer and assign to the Company all right,
title and interest in and to any such Invention, including any and all domestic
and foreign patent rights, domestic and foreign copyright rights therein, and
any renewal thereof. Such disclosure is to be made promptly after the conception
of each Invention, and each Invention is to become and remain the property of
the Company, whether or not patent or copyright applications are filed thereon
by the Company. Upon request of the Company, Executive shall execute from time
to time during or after the termination of employment such further instruments
including, without limitation, applications for patents and copyrights and
assignments thereof as may be deemed necessary or desirable by the Company to
effectuate the provisions of this paragraph.
11. CONSTRUCTION. If the provisions of paragraph 9 should be deemed
unenforceable, invalid, or overbroad in whole or in part for any reason, then
any court of competent jurisdiction designated in accordance with paragraph 13
is hereby authorized, requested, and instructed to reform such paragraph to
provide for the maximum competitive restraint upon Executive's activities (in
time, product, geographic area and customer or employee solicitation) which
shall then be legal and valid.
12. DAMAGES AND JURISDICTION. Executive agrees that violation of or
threatened violation of any of paragraphs 8, 9 or 10 would cause irreparable
injury to the Company for which any remedy at law would be inadequate, and the
Company shall be entitled in any court of law or equity of competent
jurisdiction to preliminary, permanent and other injunctive relief against any
breach or threatened breach of the provisions contained in any of said
paragraphs 8, 9 or 10 hereof, and such compensatory damages as shall be awarded.
Further, in the event of a violation of the provisions of paragraph 9, the
Restriction Period referred to therein shall be extended for a period of time
equal to the period that any violation occurred.
13. JURISDICTION AND VENUE. This Agreement shall be governed by and
construed in accordance with the laws of the State of New Jersey. The Company
and Executive hereby each consents to the jurisdiction of the Superior Court of
the State of New Jersey for the County of Passaic or the United States District
Court for the District of New Jersey with respect to any dispute arising under
the terms of this Agreement and further consents that any process or notice of
motion therewith may be served by certified or registered mail or personal
service, within or without the State of New Jersey, provided a reasonable time
for appearance is allowed.
-8-
12. INDEMNIFICATION. To the fullest extent permitted by, and subject to,
the Company's Certificate of Incorporation and By-laws, the Company shall
indemnify and hold harmless the Executive against any losses, damages or
expenses (including reasonable attorney's fees) incurred by him or on his behalf
in connection with any threatened or pending action, suit or proceeding in which
he is or becomes a party by virtue of his employment by the Company or any its
affiliates or by reason of his having served as an officer or director of the
Company or any other corporation at the express request of the Company, or by
reason of any action alleged to have been taken or omitted in such capacity.
13. SEVERABILITY. If any provision of this Agreement is held to be invalid,
illegal, or unenforceable, that DETERMINATION will not affect the enforceability
of any other provision of this Agreement, and the remaining provisions of this
Agreement will be valid and enforceable according to their terms.
14. SUCCESSORS TO THE COMPANY. Except as otherwise provided herein, this
Agreement shall be binding upon and inure to the benefit of Executive and the
Company and any successor of Executive or the Company, including, without
limitation, any corporation acquiring, directly or indirectly, all or
substantially all of the assets of the Company, whether by merger,
consolidation, sale or otherwise (and such successor shall thereafter be deemed
embraced within the terms "the Company" for the purposes of this Agreement), but
shall not otherwise be assignable by the Company. The services to be provided by
Executive hereunder may not be delegated.
15. MISCELLANEOUS.
(a) This Agreement constitutes the entire understanding of the parties with
respect to the subject hereof, may be modified only in writing, is governed by
laws of New Jersey, without giving effect to the principles of conflict of laws
thereof, and will be binding and inure to the benefit of executive and
Executive's personal representatives, and the Company, its successors and
assigns.
(b) If executive should die while any amount would still be payable to him
under this Agreement if he had continued to live, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the terms of this
Agreement to Executive's devisee or other designee or, if there be no such
designee, to his estate.
(c) The failure of any of the parties hereto to enforce any provision
hereof on any occasion shall not be deemed to be a waiver of any provision or
succeeding breach of such provision or any other provision.
(d) Any notice under this Agreement shall be given by registered or
certified mail, return receipt requested, directed to the address set forth
above, unless notice of a new address has been sent pursuant to the terms of
this paragraph.
(e) In furtherance and not in limitation of the foregoing, this Agreement
supersedes any employment agreement between the Company and Executive and any
such agreement hereby is terminated and is no longer binding on either party.
-9-
16. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be deemed to be duplicate originals.
COVISTA COMMUNICATIONS, INC. XXXXX X. XXXXXX
By: /s/ A. XXXX XXXXX, JR. /s/ XXXXX X. XXXXXX
------------------------------------------ -------------------------
Title: President & CEO
-10-
