EXHIBIT 10.6
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made effective as of the 7th
day of January, 2002, by and between o2wireless Solutions, Inc., a Georgia
corporation (the "Company"), and Xxxxxx X. Xxxxxxx ("Employee").
WHEREAS, the Company desires to employ Employee and Employee desires to
accept employment with the Company under the terms and conditions set forth
herein; and
WHEREAS, the Company and Employee desire to set forth in writing all of
the covenants, terms and conditions of their agreement and understanding as to
such employment.
NOW THEREFORE, in consideration of the foregoing, the mutual promises
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, agree as follows:
1. EMPLOYMENT AND DUTIES. The Company hereby employs Employee, and
Employee hereby accepts employment, as Executive Vice President Finance and
Administration and Chief Financial Officer of the Company. Employee shall also
be responsible for such other managerial or executive position(s) as agreed to
in writing by the parties. Employee's responsibilities will include management
and supervision of all aspects of the Company's fiscal policies and procedures,
including but not limited to, accounting, cash management, record keeping,
preparation of budgets and forecasts, financial statement preparation and
reporting, compliance with all applicable tax laws, compliance with securities
laws related to periodic reports filed with the Securities and Exchange
Commission, and all other duties and responsibilities attendant to the position
of Chief Financial Officer. Employee agrees to serve in such capacities and to
faithfully and diligently perform such duties, responsibilities and services
that are incidental thereto, as well as such other duties, responsibilities and
services as may be prescribed or requested by the Board of Directors of the
Company ("Board of Directors") from time to time. Employee shall devote his full
time, attention and best efforts to the performance of his duties,
responsibilities and services to the Company in a lawful manner and in
accordance with all policies and procedures of the Company and instructions from
the Board of Directors.
2. TERM. The term of this Agreement will commence on the date set forth
above and will terminate on June 27, 2004, unless said Agreement is terminated
at an earlier date as provided herein. The Agreement shall automatically renew
for successive one (1) year term(s) unless either party notifies the other of
its intention not to renew the Agreement at least 30 days prior to the
expiration of the term then in effect, in which event the Agreement will
terminate at the expiration of the term then in effect; provided, however, that
all post-termination rights and obligations hereunder shall survive termination
or expiration of this Agreement as provided herein.
3. COMPENSATION AND EMPLOYEE BENEFITS.
(a) Compensation. Employee shall receive an annualized salary (the
"Base Salary") of Two Hundred Twenty-Five Thousand Dollars ($225,000.00), which
shall be paid in
accordance with the Company's regular payroll practices and subject to any and
all withholdings pursuant to applicable law. Employee's performance and salary
shall be reviewed annually on or before April 1 of each year and Employee will
be entitled to such annual salary increases as may be authorized by the Board of
Directors, if any.
Employee is also eligible to receive additional annualized incentive
compensation targeted at fifty percent (50%) of his Base Salary per year, if the
Company meets performance objectives recommended by the Company's President and
Chief Executive Officer and approved by its Board of Directors. Such incentive
compensation, if earned, will be payable annually within 90 days after the end
of the fiscal year as authorized by the Board of Directors. For the year ending
December 31, 2001, Employee's opportunity to receive an incentive bonus will be
based on the performance objectives contained in the Company's Senior Management
Bonus Plan attached hereto as Exhibit "A", prorated based on Employee's time of
service with the Company during the year ending December 31, 2001.
(b) Stock Options. Pursuant and subject to the terms and conditions of
the Stock Option Agreement entered into between the Company and Employee dated
as of June 27, 2001 (the "Stock Option Agreement"), Employee has received stock
options to purchase up to Three Hundred Seventy-Five Thousand (375,000) shares
of the common stock of the Company at an exercise price of $2.00 per share (the
"Stock Options"), in accordance with the terms and conditions of the Stock
Option Agreement attached hereto and incorporated herein by reference as Exhibit
"B". In the event Employee is employed with the Company and a Change of Control
occurs, all unvested Stock Options shall vest and become exercisable in full on
the day before the effective date of such Change of Control, as more
specifically described in the Stock Option Agreement. If Employee is terminated
by the Company without Cause within 60 days prior to the occurrence of a Change
of Control, all unvested Stock Options shall vest and become exercisable on the
date of such termination, as more specifically described in the Stock Option
Agreement.
(c) Employee/Fringe Benefits. Employee shall be eligible to participate
in all employee benefit programs and fringe benefits (including, but not limited
to, medical, dental, vision, life, accidental death and dismemberment, travel,
accident and short-term/long-term disability insurance plans or programs, as may
be in effect from time to time) as provided by the Company to executive
employees, subject to any and all terms, conditions, and eligibility
requirements for said programs and benefits, as may from time to time be
prescribed by the Company. The Company shall, at the option of the Employee,
either (i) pay Employee a $750.00 per month car allowance, or (ii) provide a
Company-pool car for Employee's business use. In the event that an automobile is
provided as set forth in (ii) above, the Company shall pay for all insurance,
taxes, tag fees, gasoline, repairs, maintenance, oil and lease related charges
associated with damages. Employee acknowledges and agrees that the Company
automobile allowance in (i) above represents a taxable fringe benefit which the
Company is obligated to include in the Employee's wages for income and
employment tax purposes.
(d) Other Business Expenses. Subject to Section 3(f) herein, the Company shall
reimburse Employee for his actual out-of-pocket, business expenses that are
incurred by Employee and are reasonable and necessary in relation to and in
furtherance of Employee's
performance of his duties to the Company. In addition, Employee shall be
entitled to reimbursement for reasonable and customary costs of maintaining
memberships in professional and business organizations which are reasonably
related to the furtherance of Employee's responsibilities as Chief Financial
Officer of the Company. Such reimbursement shall be subject to compliance with
the Company's reimbursement policies and the provision of substantiating
documents of said expenses as may be reasonably requested by the Company.
(e) Vacation. Employee shall be entitled to twenty-one (21) days Paid Time Off
(PTO) per year for vacation and otherwise shall be subject to the Company's
normal vacation policy as it pertains to carryover of vacation from one calendar
year to another. Illness, other personal time away from work, and holidays shall
be allowed in accordance with the Company's normal policies; provided, that
vacation shall be taken at such times as shall not unreasonably interfere with
the Employee's responsibilities hereunder.
(f) Relocation Costs. During the initial period of Employee's employment, which
period shall not exceed twelve (12) months from and after June 27, 2001 (the
"Initial Period"), Employee's principal place of residence shall continue to be
Chicago, Illinois. However, Employee shall be physically present in the
Company's principal offices in Atlanta, Georgia as required in order to devote
his full time to the performance of his duties under this Agreement. During the
Initial Period, Employee will be expected to travel extensively to familiarize
Employee with the Company's facilities and operations to fulfill his
responsibilities as Chief Financial Officer. Travel costs, including temporary
housing when the frequency of visits reasonably and economically dictates, will
be provided by the Company directly or will be reimbursed under the Company's
expense reimbursement programs. Costs of meals, other than in connection with
business related meetings, incurred while working in the Atlanta, Georgia area
will be paid by Employee. At the conclusion of the Initial Period, the Company
may require that Employee relocate to the metropolitan Atlanta area or to
another office location within the United States that is mutually acceptable to
the Company and Employee. Upon such relocation, the Company will reimburse
Employee for all reasonable and customary expenses related to Employee's
relocation, including brokerage fees related to the sale of Employee's existing
home and the purchase of a new home and the expenses of packing, transportation
and unpacking of Employee's household effects. To the extent such reimbursements
create taxable income for Employee which cannot be reasonably offset by Employee
with a corresponding tax deduction, the Company agrees to pay to Employee an
amount which will offset the effect of the resulting tax liability.
4. TERMINATION. Employee's employment may be terminated prior to the
expiration of the employment term as follows:
(a) Death or Disability. Employee's employment hereunder shall
terminate automatically upon Employee's death. In such event, Employee's estate
shall be entitled to receive any earned and unpaid Base Salary and bonus,
prorated through the date of death. If Employee is prevented from performing the
essential functions of his position, with or without reasonable accommodations,
as a result of physical or mental illness, injury or incapacity for either (i) a
period of ninety (90) consecutive days, or (ii) more than one hundred eighty
(180) days in the aggregate in any twelve (12) month period, then Employee
acknowledges that he
would be unable to perform the essential functions of his job and the Company
may terminate the Employee's employment upon written notice to Employee. The
date of disability shall be the date specified by the Board of Directors of the
Company in the written notice provided to Employee by the Company. In the event
of termination due to disability, Employee shall be entitled to receive any
earned and unpaid Base Salary and bonus, prorated through the date of
disability. While receiving disability income payments under the Company's
disability income plan, Employee shall not be entitled to receive any Base
Salary hereunder, but shall continue to participate in the Company's benefit
plans, to the maximum extent permitted by such plans, until the termination of
his employment. Termination of his employment for disability shall not restrict
or limit the Employee's opportunity to receive continued benefits under the
Company's then existing disability plans(s) in accordance with the terms of such
plan(s).
(b) Termination by the Company For Cause. The Company may terminate
Employee's employment hereunder for Cause (as defined herein) at any time upon
notice to Employee setting forth in reasonable detail the nature of such Cause.
In the event that the Company terminates Employee's employment for Cause (or
Employee resigns from his employment with the Company), the Company shall not be
obligated to pay any salary or other compensation to Employee after the
effective date of termination, other than accrued and unpaid Base Salary through
the date of termination.
(c) Termination by the Company Without Cause. In the event the Company
terminates Employee's employment without Cause, then Employee shall be entitled
to any earned and unpaid Base Salary and bonus prorated through the date of
termination and severance pay in the form of continuation of payment of his
annualized Base Salary for a period of twelve (12) months from the date of such
termination, which shall be paid in accordance with the Company's regular
payroll practices and subject to any and all withholdings pursuant to applicable
law. In addition, the Company shall continue to provide, through COBRA or
otherwise, medical insurance coverage contemplated by Section 3(c) for a period
of twelve (12) months following the date of Employee's termination without
Cause, or until Employee's earlier commencement of employment with any other
entity, whichever occurs first. Further, the Stock Options which have vested and
are exercisable on the date of such termination by the Company without Cause
shall continue to be exercisable for a period of one (1) year from the date of
such termination, as more specifically described in the Stock Option Agreement.
Payment of the severance benefits set forth in this subparagraph 4(c), including
provisions affecting Employee's Stock Options, shall be subject to Employee's
continued compliance with the provisions of Sections 5 through 12 hereof.
(d) Termination by Employee for Good Reason. Employee may terminate his
employment hereunder, by written notice given to the Company, for Good Reason.
"Good Reason" shall be deemed to exist if one of the following conditions is
satisfied: (1) without the written consent of Employee, the assignment to
Employee of any duties materially inconsistent with Employee's position
(including status, offices, titles, and reporting requirements), authority,
duties, or responsibilities, or any other action by the Company which results in
a material diminution in such position, authority, duties, or responsibilities,
excluding for this purpose any isolated, insubstantial and inadvertent action
not taken in bad faith and which is remedied by the Company promptly after
receipt of notice thereof given by Employee; (2) a reduction by the
Company in Employee's Base Salary and/or benefits to which Employee is entitled
under this Agreement (except for any reductions in compensation or benefits
which may be applied broadly among all executives because of adverse financial
conditions of the Company or as part of a restructuring of the Company's
executive compensation programs); or (3) the Company's requiring Employee,
without his consent, to be based at any office or location other than the
Company's principal office in Atlanta, Georgia or, alternatively, Chicago,
Illinois. In the event of such termination:
(i) the Company shall continue to pay to Employee his Base Salary as of the
date of such termination by Employee for Good Reason for a period of
twelve (12) months from the date of termination;
(ii) the Company shall pay to Employee a pro rata portion of his incentive
bonus, if any, contemplated by Section 3(a) for the year in which his
employment terminated based upon the number of days in the year elapsed
prior to termination;
(iii) the Company shall continue to provide, through COBRA or otherwise,
medical insurance coverage contemplated by Section 3(c) for a period of
twelve (12) months following the date of such termination by Employee
for Good Reason, or until Employee's earlier commencement of employment
with any other entity, whichever occurs first; and
(iv) the Stock Options which have vested and are exercisable on the date of
such termination by Employee for Good Reason shall continue to be
exercisable for a period of one (1) year from the date of such
termination, as more specifically described in the Stock Option
Agreement;
provided, however, payment of the severance benefits set forth in this
subparagraph 4(d), including provisions affecting Employee's Stock Options,
shall be subject to Employee's continued compliance with the provisions of
Sections 5 through 12 hereof.
5. CONFIDENTIALITY.
(a) Employee agrees that, both during and after termination of his
employment for any reason, Employee will hold in a fiduciary capacity for the
benefit of the Company, and shall not, without the prior written consent of the
Company, directly or indirectly use (for his own benefit or for the benefit of
any other person or entity) or disclose, except as authorized by the Company in
connection with the performance of Employee's duties, any Confidential
Information, as defined hereinafter, that Employee may have or acquire (whether
or not developed or compiled by Employee and whether or not Employee has been
authorized to have access to such Confidential Information) during the term of,
or in connection with, his employment. The term "Confidential Information" as
used in this Agreement shall mean and include any information, data and know-how
relating to the business of the Company that is disclosed to Employee by the
Company or known by him as a result of his relationship with the
Company and not generally within the public domain (whether constituting a trade
secret or not), including without limitation, the following information:
(i) financial information, such as Company's earnings, assets, debts,
prices, fee structures, volumes of purchases or sales or other
financial data, whether relating to Company generally, or to particular
products, services, geographic areas, or time periods;
(ii) supply and service information, such as information concerning the
goods and services utilized or purchased by the Company, the names or
addresses of suppliers, terms of supply or service contracts, or of
particular transactions, or related information about potential
suppliers, to the extent that such information is not generally known
to the public, and to the extent that the combination of suppliers or
use of a particular supplier, though generally known or available,
yields advantages to Company the details of which are not generally
known;
(iii) marketing information, such as details about ongoing or proposed
marketing programs or agreements by or on behalf of Company, marketing
forecasts or results of marketing efforts or information about
impending transactions;
(iv) personnel information, such as employees' personal or medical
histories, compensation or other terms of employment, actual or
proposed promotions, hirings, resignations, disciplinary actions,
terminations or reasons therefor, training methods, performance, or
other employee information;
(v) customer information, such as any compilation of past, existing or
prospective customers, customer proposals or agreements between
customers and the Company, status of customer accounts or credit, or
related information about actual or prospective customers; and
(vi) information provided to the Company by a third party under an
obligation of confidentiality.
The term "Confidential Information" does not include information that
has become generally available to the public by the act of one who has the right
to disclose such information without violating any right of the Company or the
customer to which such information pertains.
(b) The covenant contained in this Section 5 shall survive the
termination of Employee's employment with the Company for any reason for a
period of two (2) years; provided, however, that with respect to those items of
Confidential Information which constitute a trade secret under applicable law,
the Employee's obligations of confidentiality and non-disclosure as set forth in
this Section 5 shall continue to survive after said two (2) year period to the
greatest extent permitted by applicable law. These rights of the Company are in
addition to those rights the Company has under the common law or applicable
statutes for the protection of trade secrets.
6. NON-SOLICITATION OF EMPLOYEES. Employee agrees that he will, for so
long as he is employed hereunder and for a period of two (2) years after
termination of his employment, refrain from, unless previously consented to in
writing by the Company, on his behalf or on behalf of any other person or
entity, soliciting the employment of, employing or encouraging to leave the
employment of the Company, its successors or assigns or any affiliate of the
Company or its successors or assigns, any individual who at such time or within
one hundred eighty (180) days prior to such time is or was an employee of the
Company, its successors or assigns or any affiliate of the Company or its
successors or assigns.
7. NON-SOLICITATION OF CUSTOMERS. Employee agrees that he will not,
without the prior written consent of the Company, take any customer lists of the
Company after leaving his employ and that he will, for so long as he is employed
hereunder and for a period of one (1) year following termination of his
employment for any reason, refrain from soliciting, or attempting to solicit,
directly or by assisting others, any business from any of the Company's
customers, including actively sought prospective customers, with whom the
Employee had material contact (as defined herein) during his employment for
purposes of providing goods or services that are like or similar to or
competitive with those provided by the Company in connection with the Company's
Business, if the Company or its successors or assigns is also then still engaged
in the Company's Business. The term "Company's Business" as used in this
Agreement shall mean the business of turnkey cable, fiber optic, wireline and
wireless telecommunications services including land use planning; site
acquisition; site, systems (including but not limited to RF) and structural
engineering; permitting and zoning; civil, site, and tower construction; tower
erection; tower design and manufacturing; equipment services; site management
and maintenance; and build-to-suit financing/ownership of sites.
8. NON-COMPETITION. Employee expressly covenants and agrees that during
the term of his employment hereunder and for a period of one (1) year after
termination of his employment for any reason, he will not, without the prior
written consent of the Company, seek, obtain or accept a "Competitive Position"
in the "Restricted Territory" with a "Competitor" of the Company (as such terms
are hereafter defined), if the Company or its successors or assigns is also then
still engaged in the Company's Business. For purposes of this Agreement, a
"Competitor" of the Company means any business, individual, partnership, joint
venture, association, firm, corporation or other entity engaged, wholly or
partly, in the business of turnkey cable, fiber optic, and wireline and wireless
telecommunications services including land use planning; site acquisition; site,
systems (including but not limited to RF) and structural engineering; permitting
and zoning; civil, site and tower construction; tower erection; tower design and
manufacturing; equipment services; site management and maintenance; and
build-to-suit financing/ownership of sites; a "Competitive Position" means the
provision of services for the benefit of any Competitor of the Company whereby
Employee will use or is likely to use any Confidential Information (as that term
is defined in Section 5), or whereby Employee has duties for such Competitor
that are the same as or substantially similar to those actually performed by him
pursuant to the terms hereof; and the "Restricted Territory" means and includes
the geographic area comprising the area within 100 miles of the Company's
corporate headquarters in Atlanta, Georgia and within 100 miles of the following
office locations of the Company, its subsidiaries, affiliates and/or divisions
as set forth on Exhibit "C"; provided that on the date at issue the Company has
not permanently ceased to conduct business within such area. Employee
acknowledges and agrees that he has been or will be working within and
throughout the Restricted Territory as defined above or has had or will have
material contact with customers or actively sought prospective customers of the
Company located within such areas.
9. MATERIAL CONTACT. For the purposes of Sections 7 and 8 of this
Agreement, "material contact" exists between Employee and each customer or
potential customer: (i) with whom Employee dealt; (ii) whose dealings with the
Company were coordinated or supervised by Employee; or (iii) about whom Employee
obtained Confidential Information in the ordinary course of business as a result
of Employee's performance of his duties and responsibilities hereunder and in
the case of each of clauses (i), (ii) and (iii) above, such occurrence was
within two (2) years prior to the date of termination of Employee's employment
with the Company.
10. TOLLING OF PERIOD OF RESTRAINT. Employee hereby expressly
acknowledges and agrees that in the event the enforceability of any of the terms
of this Agreement shall be challenged in court or pursuant to arbitration and
Employee is not enjoined from breaching any of the restraints set forth in
Sections 5 through 8, then if a court of competent jurisdiction or arbitration
panel finds that the challenged restraint is enforceable, the time period of the
restraint shall be deemed tolled upon the filing of the lawsuit challenging the
enforceability of the restraint until the dispute is finally resolved and all
periods of appeal have expired, but in no event shall any restriction endure
beyond the two (2) year anniversary of the Employee's termination from
employment with the Company.
11. ACKNOWLEDGMENTS. The Employee hereby acknowledges and agrees that
the restrictions contained in Sections 5 through 8 are fair and reasonable and
necessary for the protection of the legitimate business interests of the
Company. Employee acknowledges that in the event the Employee's employment with
the Company terminates for any reason, the Employee will be able to earn a
livelihood without violating the restrictions contained in Sections 5 through 8
and that the Employee's ability to earn a livelihood without violating such
restrictions is a material condition to the Employee's employment and continued
employment with the Company.
12. WORK PRODUCT; INVENTIONS.
(a) Ownership by the Company. The Company shall own all right, title
and interest in and to all work product developed by Employee in Employee's
provision of services to the Company, including without limitation, all
preliminary designs and drafts, all other works of authorship, all derivative
works and patentable and unpatentable inventions and improvements, all copies of
such works in whatever medium such copies are fixed or embodied, and all
worldwide copyrights, trademarks, patents or other intellectual property rights
in and to such works (collectively the "Work Product"). All copyrightable
materials of the Work Product shall be deemed a "work made for hire" for the
purposes of U.S. Copyright Act, 17 U.S.C. ss. 101 et seq., as amended.
(b) Assignment and Transfer. In the event any right, title or interest in and to
any of the Work Product (including without limitation all worldwide copyrights,
trademarks, patents or other intellectual property rights therein) does and
shall not vest automatically in and
with the Company, Employee agrees to and hereby does irrevocably assign, convey
and otherwise transfer to the Company, and the Company's respective successors
and assigns, all such right, title and interest in and to the Work Product with
no requirement of further consideration from or action by Employee or the
Company.
(c) Registration Rights. The Company shall have the exclusive worldwide
right to register, in all cases as "claimant" and when applicable as "author,"
all copyrights in and to any copyrightable element of the Work Product, and file
any and all applicable renewals and extensions of such copyright registrations.
The Company shall also have the exclusive worldwide right to file applications
for and obtain (i) patents on and for any of the Work Product in Employee's name
and (ii) assignments for the transfer of the ownership of any such patents to
the Company.
(d) Additional Documents. Employee agrees to execute and deliver all
documents requested by the Company regarding or related to the ownership and/or
other intellectual property rights and registrations specified herein. Employee
hereby further irrevocably designates and appoints the Company as Employee's
agent and attorney-in-fact to act for and on Employee's behalf and stead to
execute, register and file any such assignments, applications, registrations,
renewals and extensions and to do all other lawfully permitted acts to further
the registration, prosecution and issuance of patents, copyright or similar
protections with the same legal force and effect as if executed by Employee.
13. RIGHTS TO MATERIALS. All records, files, memoranda, computer
programs, reports, price lists, customer lists, drawings, plans, sketches,
projections, business plans, financial information, Company documents and the
like (together with all copies thereof) relating to the business of the Company,
which Employee shall use or prepare or come in contact with in the course of, or
as a result of, his employment shall, as between the parties hereto, remain the
sole property of the Company. Upon the termination of his employment or upon the
prior demand of the Company, he shall immediately return all such materials and
shall not thereafter cause removal thereof from the premises of the Company.
14. ASSISTANCE IN LITIGATION. Employee shall, upon reasonable notice,
furnish such information and assistance to the Company as may reasonably be
required by the Company in connection with any litigation in which it is, or may
become, a party, and which arises out of facts and circumstances known to
Employee. The Company shall promptly reimburse Employee for his out-of-pocket
expenses incurred in connection with the fulfillment of his obligations under
this Section; provided, however, that Employee's obligations under this Section
shall only exist during the term of this Agreement and during the period, if
any, during which he receives compensation from the Company following the
termination or expiration of this Agreement.
15. SEVERABILITY. The parties covenant and agree that the provisions
contained herein are reasonable and are not known or believed to be in violation
of any federal, state, or local law, rule or regulation. Except as noted below,
should any provision of this Agreement be declared or determined by any court of
competent jurisdiction to be unenforceable or invalid for any reason, the
validity of the remaining parts, terms or provisions of this Agreement shall not
be affected thereby and the invalid or unenforceable part, term or provision
shall be deemed not to be a part
of this Agreement. The covenants set forth in this Agreement are to be reformed
pursuant to Section 15 if held to be unreasonable or unenforceable, in whole or
in part, and, as written and as reformed, shall be deemed to be part of this
Agreement.
16. REFORMATION. If any of the covenants or promises of this Agreement are
determined by any court of law or equity, with jurisdiction over this matter, to
be unreasonable or unenforceable, in whole or in part, as written, Employee
hereby consents to and affirmatively requests that said court reform the
covenant or promise so as to be reasonable and enforceable and that said court
enforce the covenant or promise as so reformed.
17. INJUNCTIVE RELIEF. Employee understands, acknowledges and agrees that in the
event of a breach or threatened breach of any of the covenants and promises
contained in this Agreement, the Company will suffer irreparable injury for
which there is no adequate remedy at law and the Company will therefore be
entitled to obtain, without bond, injunctive relief enjoining said breach or
threatened breach. The Employee further acknowledges, however, that the Company
shall have the right to seek a remedy at law as well as or in lieu of equitable
relief in the event of any such breach.
18. EMPLOYEE'S OBLIGATIONS UPON TERMINATION. Upon the termination of
Employee's employment hereunder for whatever reason, Employee shall
automatically tender Employee's resignation from any office Employee may hold
with the Company or any subsidiary of the Company, and Employee shall not at any
time thereafter represent himself to be connected or to have any connection with
the Company or its related entities.
19. ASSIGNMENT. Due to the personal service nature of Employee's
obligations, Employee may not assign this Agreement. Subject to the restrictions
in this Section, this Agreement shall be binding upon and benefit the parties
hereto, and their respective heirs, successors or assigns. The term "Company" as
used in this Agreement shall be deemed to include the successors and assigns of
the original or any subsequent entity constituting the Company as well as any
and all divisions, subsidiaries or affiliates thereof.
20. MUTUAL NON-DISPARAGEMENT; PRESS RELEASES.
(a) Mutual Non-Disparagement. The Company and Employee agree that
neither party will undertake any disparaging or harassing conduct directed at
the other at any time during the term of this Agreement or following termination
hereof.
(b) Press Releases. Other than as required by applicable law, the
parties agree that no public announcement or similar publicity with respect to
this Agreement or the termination of Employee's employment with the Company will
be issued, if at all, unless the parties agree as to the time, manner and
content of such announcement or publicity. Unless consented to by the Company in
advance or required by law, Employee shall keep this Agreement strictly
confidential and may not make any disclosure of this Agreement or any of its
terms or provisions to any person. The parties will consult with each other in
good faith concerning the means by which the Company's employees, customers and
suppliers and others
having dealings with Employee will be informed of the termination of Employee's
employment with the Company.
21. ENTIRE AGREEMENT; MODIFICATION; GOVERNING LAW. This Agreement
constitutes the entire understanding between the parties regarding the subject
matters addressed herein and supersedes any prior oral or written agreements
between the parties. This Agreement can only be modified by a writing signed by
both parties, and shall be interpreted in accordance with and governed by the
laws of the State of Georgia without regard to the choice of law provisions
thereof. Notwithstanding the foregoing, the protective provisions contained in
Sections 5 through 12 hereof shall be governed and enforced in accordance with
the laws of the state in which enforcement of such provisions is sought.
22. NEGOTIATED AGREEMENT. Employee and the Company agree that this
Agreement shall be construed as drafted by both of them, as parties of
equivalent bargaining power, and not for or against either of them as drafter.
23. REVIEW AND VOLUNTARINESS OF AGREEMENT. Employee acknowledges
Employee has had an opportunity to read, review, and consider the provisions of
this Agreement, that Employee has in fact read and does understand such
provisions, and that Employee has voluntarily entered into this Agreement.
24. NON-WAIVER. The failure of the Company to insist upon or enforce
strict performance of any provision of this Agreement or to exercise any rights
or remedies hereunder will not be construed as a waiver by the Company to assert
or rely upon any such provision, right or remedy in that or any other instance.
25. NO CONFLICTING OBLIGATIONS. Employee hereby acknowledges and
represents that Employee's execution of this Agreement and performance of
employment-related obligations and duties for the Company as set forth hereunder
will not cause any breach, default or violation of any other employment,
non-disclosure, confidentiality, non-competition or other agreement to which
Employee may be a party or otherwise bound. Employee hereby agrees that he will
not use in the performance of his duties for the Company (or otherwise disclose
to the Company) any trade secrets or confidential information of any prior
employer or other person or entity if and to the extent that such use or
disclosure may cause a breach or violation of any obligation or duty owed to
such employer, person, or entity under any agreement or applicable law.
26. RIGHT TO ARBITRATION. Any controversy or claim arising out of or
relating to Employee's employment by the Company, or the termination thereof, or
this Agreement, or the breach thereof (including, without limitation, any claim
that any provision of this Agreement or any obligation of Employee is illegal or
otherwise unenforceable or voidable under law, ordinance or ruling or that
Employee's employment by the Company was illegally terminated) shall be settled
by arbitration at the office of the American Arbitration Association in Atlanta,
Georgia, in accordance with the United States Arbitration Act (9 USC, ss. 1 et
seq.) and the rules of the American Arbitration Association. Company and
Employee each consents and submits to the personal jurisdiction and venue of the
trial courts of Xxxx County, Georgia, and also to the personal jurisdiction and
venue of the United States District Court for the Northern District of
Georgia for purposes of enforcing this provision. All awards of the arbitration
shall be binding and non-appealable except as otherwise provided in the United
States Arbitration Act. Judgment upon the award of the arbitrator may be entered
in any court having jurisdiction thereof. The arbitration shall take place at a
time noticed by the American Arbitration Association regardless of whether one
of the parties fails or refuses to participate. The arbitrator shall have no
authority to award punitive damages, but will otherwise have the authority to
award any remedy or relief that a court of competent jurisdiction could order or
grant, including, without limitation, specific performance of any obligation
created under this Agreement, the issuance of an injunction or other provisional
relief, or the imposition of sanctions for abuse or frustration of the
arbitration process. The parties shall be entitled to engage in reasonable
discovery, including a request for the production of relevant documents.
Depositions may be ordered by the arbitrator upon a showing of need. The
foregoing provisions shall not preclude the Company from bringing an action in
any court of competent jurisdiction for injunctive or other provisional relief
as the Company may determine is necessary or appropriate. [TO BE INITIALED BELOW
BY EMPLOYEE AND COMPANY]
-------- -------- ---------
Employee Company Date
27. NOTICES. Any notice or other communications under this Agreement
shall be in writing, signed by the party making the same, and shall be delivered
personally or sent by certified or registered mail, postage prepaid, addressed
as follows:
If to Employee: Xxxxxx X. Xxxxxxx
0000 Xxxxxxxxx Xxxx
Xxxx Xxxxx, Xxxxxxxx 00000
If to the Company: o2wireless Solutions, Inc.
000 Xxxxxxxxxx Xxxxx Xxxx.
Xxxxxxx, Xxxxxxx 00000
Attention: Chairman of the Board or Corporate
Secretary
or to such other address as may hereafter be designated by either party hereto.
All such notices shall be deemed given on the date received. 28. DEFINITIONS. As
used in this Agreement, the following terms shall have the following meanings:
(a) "CAUSE." Cause shall exist:
(i) In the event of Employee's willful and persistent
inattention to or failure to properly and adequately perform his duties and
responsibilities hereunder, such performance to be evaluated in the reasonable
judgment of the Board of Directors, and such inattention or failure to perform
continues for a period of thirty (30) calendar days
after notice to Employee from the Board of Directors regarding such inattention
or failure to perform;
(ii) In the event of Employee's commission of acts amounting to gross
negligence or willful misconduct;
(iii) If Employee is convicted of (from which conviction no appeal may be
taken or the time in which to take an appeal has expired), pleads
guilty to, enters a plea of nolo contendre for or confesses to any
felony or any crime involving moral turpitude, fraud or embezzlement of
funds or property; or
(iv) If Employee fails to follow directions set out in written resolutions
passed by the Board of Directors or fails to comply with the Company's
written policies and procedures and such failure continues for a period
of ten (10) business days after notice to Employee from the Board of
Directors regarding such failure.
(b) "CHANGE OF CONTROL" shall be deemed to have occurred if:
(i) Upon the consummation of any transaction in which any person (or
persons acting in concert), partnership, corporation or other
organization shall, after the date of this Agreement, own, control, or
hold with the power to vote more than 50% of any class of voting
securities of the Company; provided, however, that any such transaction
by shareholders of the Company who, as of the date of this Agreement,
own 20% or more of the voting securities of the Company, shall not be a
Change of Control; or
(ii) Upon the consummation of any transaction, after the date of this
Agreement, in which the Company, or substantially all of the assets of
the Company, shall be sold or transferred to, or consolidated or merged
with, another corporation which is not a majority owned subsidiary of
the Company; provided, however, if the Company shall become a
subsidiary of another corporation or shall be merged or consolidated
into another corporation and a majority of the outstanding voting
shares of the parent or surviving corporation are owned immediately
after such acquisition, merger, or consolidation by the owners of a
majority of the voting shares of the Company immediately before such
acquisition, merger, or consolidation, then no Change of Control shall
be deemed to have occurred.
IN WITNESS WHEREOF, the parties hereto have hereunto affixed their
hands as of the date first above written.
THE COMPANY:
O2WIRELESS SOLUTIONS, INC.
By: /s/ XXXXXX X. XXXXXX
--------------------------------
Xxxxxx X. Xxxxxx
Chairman of the Board
EMPLOYEE:
/s/ XXXXXX X. XXXXXXX L.S.
-----------------------------------
Xxxxxx X. Xxxxxxx
