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Exhibit 10.6
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made this 24th day of May 1999, by and between Xxxx X.
Telling, an individual currently residing at 0000 Xxxxxxxxxx Xxx, Xxxxxx,
Xxxxxxxx 00000 (the "EXECUTIVE") AmeriVision Communications, Inc., an Oklahoma
corporation maintaining business offices at 0000 Xxxxxxxxx Xxxxx, Xxxxx 0000,
Xxxxxxxx Xxxx, Xxxxxxxx 00000, and each successor in interest (collectively the
"COMPANY"), and Xxxxx Xxxxxx ("STOCKHOLDER").
BACKGROUND INFORMATION
The Company wishes to obtain the services of Executive as an executive
of the Company and to create over time a shareholding in the Company by
Executive for the mutual benefit of Executive and the Company. Stockholder
supports the engagement of Executive and wishes to support his continued service
as set forth below. Executive is willing to serve as an executive of the Company
on the terms and conditions set forth below.
OPERATIVE PROVISIONS
1. Employment and Term.
The Company hereby employs the Executive and the latter hereby accepts
employment by the Company commencing as of May 24, 1999 ("the COMMENCEMENT
DATE") and continuing to the fifth anniversary date thereof (the "INITIAL
TERM"), which employment shall thereafter be automatically extended for
unlimited successive one-year periods (each a "SUCCESSOR TERM") unless it is
terminated during the pendency of any such Term, whether Initial or Successor,
by the occurrence of one of the events described in Section 8, hereof, or by one
party furnishing the other with written notice, at least six months prior to the
expiration of such Term, of an intent to terminate this Agreement upon the
expiration of such Term. If the Company, prior to, on or subsequent to the
Commencement Date, effects a merger with and into another entity such that it
then has no continuing legal existence, the Stockholder shall, in connection
with the consummation of such transaction, ensure to the extent possible that
the surviving entity assumes the obligations described hereunder. To the extent
that such an assumption is undertaken, references herein to the Company shall
also be deemed to refer to the party assuming its obligations hereunder.
2. Duties.
During the Term of this Agreement, whether Initial or Successor, the
Executive shall render to the Company services as President of the Company's
internet service provider division, provisionally named Xxxxxxxx.xxx, and shall
perform such duties normally associated with that position and commensurate with
those performed by such officers of similarly sized and functioning entities and
as may be reasonably designated by and subject to the supervision of the
Company's Chief Executive Officer or serve in such other capacities and with
such duties as shall be designated by the Company, through action of its Board
of Directors.
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3. Base Compensation.
For the services to be rendered by the Executive under this Agreement
the Company shall pay him, while he is rendering such services and performing
his duties hereunder, and the Executive shall accept as full payment for such
service, an annualized base compensation starting on the Commencement Date of
$250,000 and for each succeeding 12-month period during the Initial or any
Successor Term (inclusive of any amounts subject to federal, state or local
employment-related withholding requirements), payable in substantially equal
installments coinciding with the Company's normal employment compensation
payment cycle or pursuant to such other arrangements as the parties may agree
upon (the "BASE COMPENSATION"). Such Base Compensation shall be reviewed as of
each anniversary of the Commencement Date and may then be increased by action of
the Company's Board of Directors; but under no condition may the Executive's
Base Compensation be decreased below the amounts hereinabove set forth, or any
higher amount then being paid to him, regardless of any change in or diminution
of the Executive's duties owed to the Company. Each year thereafter, Executive's
compensation shall increase at the annual C.P.I. rate of increase (up to 5%) in
lieu of any Board action as described herein to further increase Executive's
salary.
4. Stock Bonus.
On or promptly after May 24, 1999, the Executive shall receive from the
Company one or more certificates, registered in his name, representing one
percent (1%) of the shares of the Company's common stock that are issued and
outstanding as of the close of business on the date preceding the Commencement
Date; determined on a fully diluted basis inclusive of shares reserved for
issuance upon (a) the complete exercise of all then outstanding option, warrant
or rights grants (inclusive of the shares to be made the subject of the
Executive's option grant herein described) and employee stock incentive plans,
(b) the conversion of then outstanding preferred shares or convertible debt
instruments into shares of the Company's common stock, or (c) the consummation
of any then-authorized stock split or stock dividend provided that if at the
time of such intended issuance the Company constitutes a subsidiary of another
corporation or its corporate existence has been terminated as a result of its
merger into or consolidation with another corporation, then Executive shall
receive certificate(s) representing an identical ownership interest in the
ultimate parent of the Company or of the survivor of any such merger or
consolidation, or, if no such parent shall then exist, then in the survivor of
the merger or consolidation. The value of each such share as of the date of
issuance or date of vesting, as applicable, shall be determined by the issuer's
board of directors. The shares shall vest 25 percent on July 1, 1999 and 25
percent on the anniversary thereof for each year of service to the Company by
Executive after July 1, 1999 up to three years of service. In addition, the
Company shall pay at the time of each such vesting a cash bonus to Executive
equal to an amount such that after the payment by Executive of all federal,
state and local income taxes, self-employment taxes, or other taxes (including
any interest or penalties, arising from the actions or inactions of the Company,
imposed with respect thereto) ("INCOME TAXES") imposed on the receipt of the
stock being vested and on such bonus, Executive retains an amount of the bonus
equal to the Income Taxes imposed on him by the vesting of the stock and by the
bonus payments.
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5. Fringe Benefits; Reimbursement of Expenses; Stock Option Grant.
During his period of employment hereunder, the Executive shall be
entitled to (a) such leave by reason of physical or mental disability or
incapacity and to such participation in the medical, dental and group insurance,
pension and other retirement benefits and disability and other fringe benefit
plans and vacation as the Company may make generally available to all of its
most senior executive employees from time to time; subject, however, as to such
plans, to such budgetary constraints or other limitation as may be imposed by
the Board of Directors of the Company from time to time; and (b) reimbursement
for all normal and reasonable expenses necessarily incurred by him in the
performance of his obligations hereunder, subject in each case to such
reasonable substantiation requirements as may be imposed by the Company.
The Executive is hereby granted a non-qualified option (the "OPTION")
to acquire from the Company authorized but unissued shares of its common voting
stock in a quantity equal to three percent (3%) of the Company's then issued and
outstanding common stock, to be determined on a fully diluted basis inclusive of
shares reserved for issuance upon (a) the complete exercise of all then
outstanding option, warrant or rights grants (inclusive of the shares to be made
the subject of Executive's option grant herein described) and employee stock
incentive plans, (b) the conversion of then outstanding preferred shares or
convertible debt instruments into shares of the Company's common stock, or c)
the consummation of any then-authorized stock split or stock dividend provided
that if at the time of such intended issuance the Company constitutes a
subsidiary of another corporation or its corporate existence has been terminated
as a result of its merger into or consolidation with another corporation, then
Executive shall receive certificate(s) representing an identical ownership
interest in the ultimate parent of the Company or of the survivor of any such
merger or consolidation, or, if no such parent shall then exist, then in the
survivor of the merger or consolidation. The exercise price of each share the
subject of the Option grant shall in consideration of Executive's prior
agreement with the Company be the fair value at February 1, 1998 as determined
by the Company's Board of Directors, and assuming the Executive is then an
employee of the Company or has previously terminated such employment under the
"Good Reason" provisions of Section 8e below, the date upon which exercise of
incremental portions of the Option may commence shall be determined in the
following manner:
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The following percentage shall be exercisable
of the Option shares commencing
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25% on July 1, 1999
25% July 1, 2000
25% July 1, 2001
25% July 1, 2002
and each exercise right shall continue in force for a period of five years
following its commencement, irrespective of the Executive's subsequent
employment status with the Company. Further, on the date of any sale of all or
substantially all of the Company's assets or any merger or consolidation
transaction as the result of which the Company is not the surviving entity
(other than any merger effected for the principal purpose of reincorporation in
another jurisdiction or for another purpose not resulting in at least a 30%
change in the ultimate beneficial ownership of the Company), the Executive (or,
in the event of his legal incapacity, his legal representative(s)) shall also be
entitled to exercise the Option as to all shares then otherwise ineligible for
exercise, and within the six-month period following his death, the Executive's
representative(s) or Beneficiary(ies) shall be entitled to exercise the Option
as to one-half of all shares which would otherwise be ineligible for acquisition
as of the date of his death. Shares made the subject of the Option grant as to
which no exercise right shall have commenced on the date of the Executive's
termination of employment for other than death or Good Reason, shall be returned
to the status of authorized but unreserved shares and shall no longer be
available for acquisition.
The Executive's existing right to maintain his principal business
office at a location of his choice within the state of New Jersey for one week
during each calendar month occurring in the spring, autumn and winter of each
calendar year, and for such number of weeks during the summer as he deems
appropriate, shall be preserved throughout the Term of this Agreement. The
Company shall pay all reasonable commuting expenses of the Executive in
maintaining this arrangement, as well as the reasonable commuting costs incurred
by the Executive's wife in making four round-trip visits to New Jersey during
each calendar year.
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6. Proprietary Interests.
During or after the expiration of his term of employment with the
Company, the Executive shall not communicate or divulge to, or use for the
benefit of, any individual, association, partnership, trust, corporation or
other entity except the Company, any proprietary or confidential information of
the Company received by the Executive by virtue of such employment, without
first being in receipt of the Company's written consent to do so and in
compliance with the terms of any other confidentiality or non-competition
agreement which the Executive may hereafter execute with the Company; provided
that nothing contained herein shall restrict the Executive's use or disclosure
of such information known to the public (other than that which he may have
disclosed in breach of this Agreement), or as required by law (so long as
Executive gives the Company prior notice of such required disclosure).
7. Remedies for Breach of Obligations.
a. Injunctive Relief. The parties agree that the services of the
Executive are of a personal, specific, unique and extraordinary character and
cannot be readily replaced by the Company. They further agree that in the course
of performing his services, the Executive will have access to various types of
proprietary information of the Company, which, if released to others or used by
the Executive other than for the benefit of the Company, in either case without
the Company's consent, could cause the Company to suffer irreparable and
continuing injury. Therefore, the confidentiality obligations of the Executive
established under Section 6 hereof shall be enforceable by the Company both at
law and in equity, by injunction, specific performance, damages or other remedy;
and the right of the Company to obtain any such remedy shall be cumulative and
not alternative and shall not be exhausted by any one or more uses thereof.
b. Arbitration. In the event of any dispute between the parties under
or relating to this Agreement or relating to the Executive's employment by the
Company, such dispute shall be submitted to and settled by arbitration in
Oklahoma County, Oklahoma, in accordance with the rules and regulations of the
American Arbitration Association then in effect. The arbitrator(s) shall have
the right and authority to determine how their award or decision as to each
issue and matter in dispute may be implemented or enforced. Any decision or
award shall be final and conclusive on the parties; there shall be no appeal
therefrom other than for claimed bias, fraud or misconduct by the arbitrator(s);
judgment upon any award or decision may be entered in any court of competent
jurisdiction in the State of Oklahoma or elsewhere; and the parties hereto
consent to the application by any party in interest to any court of competent
jurisdiction for confirmation or enforcement of such award. The party against
whom a decision is made shall pay the fees of the American Arbitration
Association. Notwithstanding the foregoing, the Company, at its sole option
shall be entitled to enforce its rights, as contemplated by Section 7a hereof,
to injunctive and other equitable relief in the event of a breach of Section 6
hereof or of any material term of a confidentiality or non-competition agreement
to which the Company and the Executive shall then be parties, either by
arbitration pursuant to this Section 7b, or directly in any court of competent
jurisdiction.
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8. Termination of Employment.
a. Death. The Executive's employment hereunder shall terminate in the
event of the Executive's death. Except for (i) any salary and benefits accrued,
vested and unpaid as of the date of any such termination, (ii) any benefits to
which the Executive or his heirs or personal representatives may be entitled
under and in accordance with the terms of any employee benefit plan, policy or
program maintained by the Company, and (iii) the limited right to exercise the
Option described in Section 5 above, the Company shall be under no further
obligation hereunder to the Executive or to his heirs or personal
representatives, and the Executive or his heirs or personal representatives no
longer shall be entitled to receive any payments or any other rights or benefits
under this Agreement.
b. Disability. The Company may terminate the Executive's employment
hereunder for "DISABILITY," if an independent physician mutually selected by the
Executive (or his legal representative) and the Board of Directors or its
designee (or, upon an inability of such parties to effect the selection within a
period of ten days, by the independent certified public accounting firm then
serving the Company) shall have determined that the Executive has been
substantially unable to render to the Company services of the character
contemplated by Section 2 of this Agreement, by reason of a physical or mental
illness or other condition, for more than 60 consecutive days or for shorter
periods aggregating more than 120 days in any period of 12 consecutive months
(excluding in each case days on which the Executive shall be on vacation). In
the event of such Disability, the Executive shall be entitled to receive any
salary and benefits accrued, vested and unpaid as of the date of any such
termination and any benefits to which the Executive may be entitled under and in
accordance with the terms of any employee benefit plan, policy or program
maintained by the Company; and upon the Executive's receipt of such salary and
benefits the Company shall be under no further obligation hereunder to the
Executive and the Executive no longer shall be entitled to receive any payments
or any other rights or benefits under this Agreement.
c. Termination by the Company for Cause. The Company may terminate the
Executive's employment hereunder for "CAUSE." For purposes of this Agreement,
"CAUSE" shall mean any of the following:
i. The Executive's repeated willful misconduct or gross negligence;
ii. The Executive's repeated conscious disregard of his obligations
hereunder or of any other written duties reasonably assigned to
him by the Board of Directors;
iii. The Executive's repeated conscious violation of any provision of
the Company's by-laws or of its other stated policies, standards
or regulations;
iv. The Executive's commission of any act involving fraud; or
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v. A determination that the Executive has demonstrated a dependence
upon any addictive substance, including alcohol, controlled
substances, narcotics or barbiturates;
provided, however, that if the Board of Directors of the Company desires to
terminate the Executive for any of the reasons set forth in: (1) clause (i),
(ii) or (iii) of this Section 8c, the Company, within the 60-day period
immediately following each alleged commission of a proscribed act or omission,
shall have furnished to the Executive a written description of the allegedly
proscribed act or omission and a statement advising him that the Company views
such conduct as being of the type which could lead to a termination of the
Executive for Cause; (2) clause (ii) or (iii) of this Section 8c, the Board must
be able to demonstrate that the Executive has been furnished with a copy of the
written duty, by-law provision, policy, standard or regulation, the violation of
which the Executive is being accused, at a time prior to the alleged commission
of the violation: or (3) clause (iv) or (v) of this Section 8c, the Board shall
first be required to obtain an opinion from Company counsel to the effect that
there is an adequate basis upon which either such determination may be made.
Except for any salary and benefits accrued, vested and unpaid as of the date of
any such termination, the Company shall be under no further obligation hereunder
to the Executive, and the Executive no longer shall be entitled to receive any
payments or any other rights or benefits, under this Agreement.
d. Termination by the Company Other Than for Cause. The
Company may terminate the Executive's employment hereunder upon the expiration
of the Initial Term or any Successor Term, provided that notice of termination
is furnished as set forth in Section 1, and subject to the right of the
Executive, within such notification period, to effect his own Good Reason
termination as described in subsection 8e below. In the event of either such
termination, the Executive shall be entitled to receive any salary and benefits
accrued, vested and unpaid as of the date of any such termination and any
benefits to which the Executive may be entitled under and in accordance with the
terms of any employee benefit plan, policy or program maintained by the Company,
as well as, in the event that the Executive shall have timely effected a Good
Reason termination, those benefits authorized under the provisions of subsection
8e; and following his receipt of such salary and benefits the Company shall be
under no further obligation hereunder to the Executive and the Executive no
longer shall be entitled to receive any payments or any other rights or benefits
under this Agreement.
e. Termination by the Executive for Good Reason.
Notwithstanding anything herein to the contrary, the Executive shall be entitled
to terminate his employment hereunder for "Good Reason" without breach of this
Agreement. For purposes of this Agreement, "GOOD REASON" shall exist upon the
occurrence of any of the following events or matters, in each case without the
Company first being in receipt of the Executive's written consent thereto, and
the period of time within which the Executive shall be required to exercise a
Good Reason termination of service shall be 30 days, measured from the date upon
which he is notified by the Company of such occurrence, or, with respect to the
matter identified in clause (iii) below, from the date upon which the Executive
notifies the Company of his belief that a material breach has occurred, and,
with respect to the matter identified in clause (vi) below, from the later of
the dates upon which the Executive's or the Company's physician statement is
furnished:
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i. A directed change in the Executive's place of employment in
violation of Section 5 above;
ii. A material adverse change in, or a substantial elimination
of, the duties and responsibilities of the Executive;
iii. A material breach by the Company of its obligations
hereunder;
iv. A change in control of the Company;
v. Receipt by the Executive of the Company's notice that it
intends to terminate him other than for Cause either at the
end of a particular Term of employment, whether Initial or
Successor; or
vi. Impairment of the Executive's health to an extent that makes
his continued performance of duties under this Agreement
hazardous to his physical or mental health, provided that the
Executive shall have furnished the Company with a written
statement from a qualified physician to that effect, and,
provided further, that, at the Company's request, made within
ten days after its being furnished with a copy of such
statement, the Executive shall submit to an examination by a
physician selected by the Company and such physician shall
have concurred in writing with the conclusion of the
Executive's physician.
For purposes of clause (iv) above, a "CHANGE IN CONTROL OF THE COMPANY" shall
mean (a) the acquisition, directly or indirectly, after the date hereof, by any
"person" (as such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as in effect on the date hereof), of voting power over
voting shares of the Company that would entitle the holder(s) thereof to cast at
least 25% of the votes that all shareholders would be entitled to cast in the
election of directors of the Company, provided that such term shall not be
deemed to apply to an acquisition by one or more institutional underwriters
directly from the Company in accordance with the conditions of a registration
statement theretofore filed with and declared effective by the United States
Securities and Exchange Commission; or (b) the failure, at any time within the
Term of this Agreement (inclusive of both Initial and Successor), of the
individuals who at the Commencement Date shall constitute the Company's Board of
Directors to constitute at least a majority of such membership, unless the
election of each director who is not a director at the Commencement Date shall
have been approved in advance by directors representing at least 75% of the
directors then in office who are directors at the Commencement Date.
In the event of a Good Reason termination by the Executive within the
Initial or any Successor Term, the Executive shall be entitled to continue to
receive from the Company the Executive's current annual Base Compensation
through the Initial Term or Successor Term as applicable, and in addition
Executive shall receive the Executive's current annual Base Compensation payable
over the succeeding 12-month period from the effective date of termination.
Under either circumstance, the Executive shall also be entitled to continue to
receive full vesting of all Stock Bonus and Stock Option Grants as provided in
Sections 4 and 5. In addition, the Company shall pay at the time of each such
vesting a cash bonus as described
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above in Section 4. Except for such termination compensation following any such
termination, and except for any salary and benefits accrued, vested and unpaid
as of the date of any such termination, the Executive no longer shall be
entitled to receive any payments or any other rights or benefits under this
Agreement, and the Company shall have no further obligation hereunder to the
Executive following any such termination.
f. Termination by the Executive for Other Than Good Reason.
The Executive may terminate his employment hereunder upon the expiration of the
Initial Term or any Successor Term, provided that notice of termination is
provided as set forth in Section 1. In the event of such termination, the
Executive shall be entitled to receive any salary and benefits accrued, vested
and unpaid as of the date of any such termination and any benefits to which the
Executive may be entitled under and in accordance with the terms of any employee
benefit plan, policy or program maintained by the Company; and following his
receipt of such salary and benefits to the Company shall be under no further
obligation hereunder to the Executive and the Executive no longer shall be
entitled to receive any payments or any other rights or benefits under this
Agreement.
g. Life and Disability Insurance Coverage. If termination of
employment is due to any reason other than death, the Executive shall have the
right, subject to receiving approval of the Company (which shall not be
unreasonably withheld), to purchase any policy of insurance on his life or
insuring against his disability which is owned by the Company, the exercise of
which right shall be made by notice furnished to the Company within 30 days
subsequent to the date of termination. The purchase price of each policy of life
insurance shall be the sum of its interpolated terminal reserve value (computed
as of the closing date) and the proportional part of the gross premium last paid
before the closing date which covers any period extending beyond that date; or
if the policy to be purchased shall not have been in force for a period
sufficient to generate an interpolated terminal reserve value, the price shall
be an amount equal to all net premiums paid as of the closing date. The purchase
price of each disability income policy shall be the sum of its cash value and
the proportional part of the gross premium last paid before the closing date
which covers any period extending beyond that date. The purchase of any
insurance policy by the Executive shall be closed as promptly as may be
practicable after the giving of notice, in no event to exceed 30 days therefrom.
h. Termination Plan. The provisions of subsections 8a-g,
inclusive, shall be eliminated and be of no further legal effect immediately
following the adoption by the Company's Board of Directors of a resolution,
voluntarily joined in by the Executive, either in his capacity as a member
thereof or, if he is then not such a member, individually, approving a
termination of employment plan applicable to the Executive and all other elected
officers of the Company.
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9. Indebtedness of Executive.
If, during the course of his employment, the Executive becomes indebted
to the Company for any reason, the Company shall, if it so elects, have the
right to set-off and to collect any sums due it from the Executive out of any
amounts which it may owe to the Executive for unpaid compensation. In the event
that this Agreement terminates for any reason, all sums owed by the Executive to
the Company shall become immediately due and payable.
10. Miscellaneous Provisions.
a. Notice: All notices or other communications required or permitted to
be given pursuant to this Agreement shall be in writing and shall be considered
properly given to the recipient party if furnished by hand delivery; by sending
a copy thereof by first class or express mail, postage prepaid, or by courier
service (with charges prepaid), in each case to the address indicated above or
to such other address as the recipient shall have provided in accordance with
the terms hereof; or by sending a copy thereof by whatever telecopier service
the recipient shall have designated below (or by subsequent notice provided in
accordance with the terms hereof). If the notice is sent by mail or courier
service, it shall be deemed to have been given to the recipient when deposited
in the United States mail or courier service for delivery to that party; or if
by telecopier, when the sending party is in receipt of documentary evidence that
the transmission has been successfully completed. Whenever the furnishing of
notice is required, the same may be waived by the party entitled to receive such
notice.
b. Assignability: The Company may assign this Agreement to, and only
to, an entity owned more than 50% by the Company (directly or indirectly), and
which acquires all or substantially all of the Company's business, and upon such
assignment this Agreement shall inure to the benefit of and be binding upon such
entity. Neither this Agreement nor any right or interest hereunder shall be
assignable by Executive but shall inure to the benefit of and be binding upon
him, his Beneficiaries and legal representatives.
c. Nontransferability of Option: The Option is not transferable by the
Executive otherwise than by will or the laws of descent and distribution. During
Executive's lifetime, only Executive may exercise the Option. This Option may
not be transferred, assigned, pledged, hypothecated, or otherwise disposed by
the Executive during his lifetime, whether by operation of law or otherwise, and
is not subject to execution, attachment or similar process. Any attempted
transfer, assignment, pledge, hypothecation, or other disposition of this Option
contrary to the provisions hereof, and the levy of an attachment or similar
process upon the Option, shall be null and void and without effect. The Company
shall have the right to terminate the Option in the event of such attempted
transfer, assignment, pledge, hypothecation, or other disposition, or levy of
attachment or similar process, by notice to that effect to the Executive,
provided, however, that termination of the Option hereunder shall not prejudice
any rights or remedies which the Company may have under this Agreement or
otherwise.
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d. Restrictions on the Transferability of Shares: The shares of common
stock of the Company received under Section 4 above are not transferable other
than after they have vested in accordance with such Section or by will or the
laws of descent and distribution, or as set forth in this Section 10. Any
attempted transfer, assignment, pledge, hypothecation, or other disposition of
any such shares contrary to the provisions hereof shall be null and void and
without effect. The certificate(s) evidencing such shares described in Section 4
shall bear a legend indicating that the transferability of the shares is
governed by this Agreement.
e. Entire Agreement: This Agreement, and any other document referenced
herein, constitute the entire understanding of the parties hereto with respect
to the subject matter hereof, and no amendment, modification or alteration of
the terms hereof shall be binding unless the same be in writing, dated
subsequently to the date hereof and duly approved and executed by each of the
parties hereto. This Agreement supersedes in its entirety all other prior
agreements between the Executive and the Company, including but not limited to
the Employment Agreement dated October 9, 1997 and the Amended and Restated
Employment Agreement dated January 1, 1998. Furthermore, Xxxxx Xxxxxx pledges
that if any document, contract or agreement executed by Xxxxx Xxxxxx conflicts
as to the duties stated in such document, contract, or agreement with the duties
as outlined in Section 2 of this Agreement, the terms of this Agreement as to
duties shall prevail over any conflicting document, contract, or agreement.
f. Enforceability: If any term or condition of this Agreement shall be
invalid or unenforceable to any extent or in any application, then the remainder
of this Agreement, and such term or condition except to such extent or in such
application, shall not be affected thereby and each and every term and condition
of this Agreement shall be valid and enforced to the fullest extent and in the
broadest application permitted by law.
g. Governing Law: This Agreement shall be deemed to have been made in
and shall be construed and interpreted in accordance with the laws of the State
of Oklahoma without giving effect to principles of conflicts of laws.
h. Counterparts: This Agreement may be executed by any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
i. Binding Effect: Each of the provisions and agreements herein
contained shall be binding upon and inure to the benefit of the personal
representatives, devisees, heirs, successors, transferees and assigns of the
respective parties hereto.
j. Legal Fees and Costs: If a legal action is initiated by any party to
this Agreement against another, arising out of or relating to the alleged
performance or non-performance or any right or obligation established hereunder,
or any dispute concerning the same, any and all fees, costs and expenses
reasonably incurred by each successful party or his or its legal counsel in
investigating, preparing for, prosecuting, defending against, or providing
evidence, producing
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documents or taking any other action in respect of, such action shall be the
joint and several obligation of and shall be paid or reimbursed by the
unsuccessful party(ies).
k. Beneficiary: As used herein, the term "Beneficiary" shall mean the
person or persons (who may be designated contingently or successively and who
may be an entity other than an individual, including an estate or trust)
designated in writing to receive the expiration of Agreement or death benefits
described in Section 8 above. Each Beneficiary designation shall be effective
only when filed with the secretary of the Company during the Executive's
lifetime. Each Beneficiary designation filed with the Secretary will cancel all
designations previously so filed. If the Executive fails to properly designate a
Beneficiary or if the Beneficiary predeceases the Executive or dies before
complete distribution of the benefit has been made, the Company shall distribute
the benefit (or balance thereof) to the Executive's probate estate.
l. Adjustments: In the event of any change in the common stock of the
Company by reason of a stock dividend, forward or reverse stock split,
recapitalization, corporate merger or combination, exchange of shares with
another corporation, or a substantially similar event which dilutes the value of
or otherwise adversely affects such stock or the ability of Executive to
exercise his option rights, granted under Section 5 above, in accordance with
the terms of this Agreement (each a "CORPORATE FINANCE TRANSACTION"), the number
of shares made the subject of Executive's options and the price at which each
share is subject to purchase by Executive shall be adjusted appropriately to
ensure that the shares will be subject to acquisition by Executive at a price
and upon terms commensurate to those herein set forth. Moreover, the Company
shall be required to notify Executive promptly following its approval of a
Corporate Finance Transaction, and to provide Executive with the right to effect
an exercise of the options within whatever period of time then precedes the
scheduled consummation of such Transaction.
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13
IN WITNESS WHEREOF, the parties have executed this Agreement.
By: /s/ Xxxxx Xxxxxx
----------------------------
Xxxxx Xxxxxx, Stockholder
By: /s/ Xxxx X. Telling
----------------------------
Xxxx X. Telling
AmeriVision Communications, Inc.
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------
Xxxxxxx X. Xxxxxxxx,
Chief Executive Officer
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