EXHIBIT 10.62
EXECUTION COPY
EXECUTIVE AGREEMENT
THIS EXECUTIVE AGREEMENT (this "Agreement") dated as of December 1,
2001, (the "Effective Date"), is made by and between Pac-West Telecomm, Inc., a
California corporation (the "Company") and Xxxxxxx X. Xxxxxxx ("Executive").
Certain terms used herein and not otherwise defined herein have the meanings
given to such terms in Section 13 hereof.
WHEREAS, as of the Effective Date the Company desires to secure Executive's
continuing services to the Company on the terms described herein and Executive
desires to provide such services to the Company on the terms described herein;
NOW, THEREFORE, in consideration of the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
A. Provisions Relating to Employment.
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1. Employment. The Company shall employ Executive, and Executive hereby
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agrees to continue employment with the Company, upon the terms and conditions
set forth in this Agreement for the period beginning on the Effective Date and
ending as provided in paragraph 4 below (the "Employment Period").
2. Position and Duties.
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(a) During the first two (2) years of the Employment Period, Executive
shall serve as the "Chief Executive Officer and Chairman of the Board" of the
Company and shall have such duties, responsibilities and authority as shall be
determined by the Company's Board of Directors.
(b) Executive shall report to the Company's board of directors (the
"Board") and Executive shall devote his best efforts and his full business time
and attention to the business and affairs of the Company and its Subsidiaries.
Executive shall perform his duties and responsibilities to the best of his
abilities in a diligent, trustworthy, businesslike and efficient manner.
3. Compensation and Benefits.
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(a) Base Salary. During the first two (2) years of the Employment
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Period, Executive's base salary shall be $350,000 per annum or such higher rate
as the Board in its sole discretion may designate from time to time (the "Base
Salary"), which salary shall be payable in regular installments in accordance
with the Company's general payroll practices and shall be subject to customary
withholding and other customary deductions.
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(b) Bonuses. Executive shall be eligible to earn a bonus (the "Annual
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Bonus") during the Employment Period in an amount to be determined prior to each
fiscal year by the Board and Executive. The Annual Bonus shall be structured, as
agreed upon by Executive and the Board in good faith, to provide for all or a
portion of the Annual Bonus to be paid upon the achievement by the Company of
certain separate specific objectives with such objectives generally designed to
provide Executive with an Annual Bonus of 40% of the Base Salary in a normal
year. The objectives shall be set at levels that are reasonable and achievable.
The Annual Bonus may exceed 40% of the Base Salary as determined by the Board in
its discretion. Such Annual Bonus shall be payable within 45 days following the
end of each fiscal year during the Employment Period based upon the Company
having achieved such specific objectives for such fiscal year determined by the
Board and the Executive in good faith prior to such fiscal year and based upon
the Executive's performance during such fiscal year.
(c) Benefits.
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(i) During the Employment Period, Executive shall be entitled
to participate in all of the Company's employee benefit plans and programs for
which senior executive employees of the Company are generally eligible (subject
to the Company's right to amend, modify or terminate any such plan or program in
accordance with its terms and applicable law and subject in each case to any
applicable waiting periods or other restrictions contained in such benefit plans
or programs), which shall include, but shall not be limited to, health
insurance, dental insurance and participation in the Company Executive Deferred
Compensation Plan and Company's 401(k) plan. The Company shall match any
contributions made by Executive to the Company's 401(k) plan to the extent
consistent with the Company's past practice and the terms of such plan and to
the extent consistent with applicable law.
(ii) Due to the fact that Executive will be required to be on
call continuously for emergency response and to travel extensively by vehicle on
company business, during the Employment Period the Company shall provide to
Executive the use of a reasonably priced car consistent with the Company's past
practice for other senior executives. Such company car shall be available for
Executive's use in a manner consistent with past practice for other senior
executives. Executive acknowledges and agrees that the Company may report all or
a portion of the cost of such car and its operation as additional compensation
to Executive if the Company reasonably believes the same may be required by
applicable law. The company agrees to transfer title of the car to Executive at
the termination of employment for one dollar ($1.00).
(iii) The Company will continue to provide a One Million Dollar
($1,000,000.00) life insurance policy on the Executive payable to his spouse or
estate as specified. The Company shall use best efforts to transfer the policy
to the Executive at the termination of this agreement at which time the
Executive would assume responsibility for paying the insurance premiums.
(iv) Executive shall be entitled to four (4) weeks of paid
vacation during each year of the Employment Period, in addition to those legal
holidays observed
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by Company. Vacation hereunder shall accrue from year to year based upon the
Company's then current policy for all employees as established from time to time
by the Board in its sole discretion.
(v) The Company shall reimburse Executive for all reasonable
expenses incurred by him in the course of performing his duties under this
Agreement which are consistent with the terms of this Agreement and the
Company's policies in effect from time to time with respect to travel,
entertainment and other business expenses, subject to the Company's general
policies with respect to reporting and reasonable documentation of such
expenses.
(vi) The Company will provide a Country Club Membership of the
Executive's choice in San Xxxxxxx County, and will pay the dues and any
assessments associated with such membership. Other charges in respect to this
account will be reimbursed in accordance with the Company's expense
reimbursement policy.
(d) Stock Options. The Company hereby agrees to grant to Executive
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promptly after the Effective Date, refresher options to purchase three hundred
seventy-two thousand eight hundred forty-seven (372,847) shares of the Company's
Common stock on the terms as approved by the Board of Directors for senior
officers of the Company on October 26, 2001 and thereafter modified by action of
the Compensation Committee to shorten the vesting from four (4) years to three
(3) years. The terms of such stock options shall be contained in an option
agreement issued pursuant to the 1999 Pac-West Telecomm, Inc. Stock Incentive
Plan (the "Plan") as in effect as of the time of such grant. Notwithstanding any
provision to the contrary, all of the options granted to Executive shall fully
vest immediately upon termination of this agreement for any reason other than
"cause" as defined in Section 13 of this Agreement.
4. Term and Termination.
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(a) The Employment Period pursuant to this Agreement shall be for an
initial term ending on November 30, 2003. The term of the Agreement and the
Employment Period can be extended, at the option of the Company, for one
additional one year term of full or part time service by Executive as
transitional CEO (including possibility of a Co-CEO position) and active Board
Chairman or just as active Board Chairman. The option shall be exercised by
Company giving written notice delivered at least (30) thirty days prior to the
effective termination date of this Agreement; provided that, notwithstanding
anything in this Agreement to the contrary, expressed or implied, or Section
2924 of the California Labor Code or any similar provision of applicable law,
the Employment Period pursuant to this Agreement shall terminate prior to the
expiration of the initial or extended term upon (i) Executive's resignation for
any reason (with such resignation being effective 30 days after notice thereof
is delivered by Executive to the Company), (ii) Executive's death or Disability
or (iii) termination of Executive's employment by the Company with or without
Cause.
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(b) In the event Company exercises the option to extend this Agreement
and the Employment Period for a third year, the Base Salary and bonus, if any,
shall be as mutually agreed with all other benefits remaining in force.
(c) In the event of a change of control of the Company, including,
but not limited to, a corporate transaction as that term is defined in the Plan
referred to at Section 3(d), above, the Executive shall have the option to
terminate his employment as a deemed termination by the Company, entitling the
Executive to immediate payment of all severance including any accrued but unpaid
Annual Bonus and the COBRA rights referenced at Section 5, below.
5. Severance.
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(a) If the Employment Period is terminated by the Company without
Cause, Executive shall be entitled to receive an amount equal to his Base Salary
for a one-year period after such termination and (ii) payment by the Company of
all health insurance premiums with respect to Executive's continuation coverage
rights under the Consolidated Omnibus Budget Reconciliation Act of 1985, as
amended, (i.e., "COBRA" payments), or any similar statute or regulation then in
effect, for the one-year period after such termination or such shorter period
until Executive obtains coverage under the medical plans of any subsequent
employer or otherwise fails to be eligible for continuation coverage with
respect to the Company's medical plans under COBRA (for purposes of this
Agreement, collectively the "Severance Period"), so long as Executive has not
breached and does not breach the provisions of any of paragraphs 6, 7, 8, 9, 10,
or 12 below during the time period set forth therein or breached the provisions
of any agreement referenced thereby.
(b) If the Employment Period is terminated as a result of Executive's
Disability, Executive and/or his estate or beneficiaries, as the case may be,
shall be entitled to receive benefits under the Company's employee benefit
programs as in effect on the date of such termination to the extent permitted
thereunder and under applicable law and, in addition, shall be entitled to
receive (i) an amount equal to Executive's Base Salary at the times set forth in
this Agreement for the lesser of the terminated portion of the Employment Period
or the one-year period after such termination of and (ii) the amount of any
Annual Bonus otherwise payable to Executive pursuant to paragraph 3(b) above for
the fiscal year in which Executive's employment is terminated, except that the
amount of any such Annual Bonus otherwise payable pursuant to this paragraph
5(b) shall be pro rated on the basis of the number of days during such fiscal
year that Executive was employed by the Company; provided that to the extent
that the Company establishes and maintains disability insurance providing to
Executive and/or his estate or beneficiaries, as the case may be, a disability
income benefit, the Company shall be relieved on a dollar for dollar basis of
its obligation to make such payments pursuant to this paragraph 5(b).
(c) If the Employment Period is terminated as a result of Executive's
death, Executive and/or his estate or beneficiaries, as the case may be, shall
be entitled to receive benefits under the Company's employee benefit programs as
in effect on the date of such termination to the extent permitted thereunder and
under applicable law and, in
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addition, shall be entitled to receive the amount of any Annual Bonus otherwise
payable to Executive pursuant to paragraph 3(b) above for the fiscal year in
which Executive's employment is terminated, except that the amount of any such
Annual Bonus otherwise payable pursuant to this paragraph 5(c) shall be pro
rated on the basis of the number of days during such fiscal year that Executive
was employed by the Company.
(d) If the Employment Period is terminated by the Company for Cause or
if Executive resigns for any reason other than as authorized in Section 4(b),
Executive shall be entitled to receive only his Base Salary through the date of
termination and the Company shall have no further liability whatsoever to
Executive.
(e) Except as otherwise expressly provided herein or as expressly
required by applicable law (including under Section 4980B of the Internal
Revenue Code of 1986, as amended), all of Executive's rights to fringe benefits
and bonuses hereunder shall cease upon termination of the Employment Period.
6. Confidential Information; Nonsolicitation.
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(a) Executive agrees to execute on the date hereof and to be bound as
of the date hereof by the terms of the Company's form of confidentiality
agreement attached hereto as Exhibit A.
(b) Executive agrees that until the date which is one year after the
termination of the Employment Period, he shall not directly, or indirectly
through another Person, (i) induce or attempt to induce any employee of the
Company or any of its Subsidiaries to leave the employ of the Company or such
Subsidiary, or in any way interfere with the relationship between the Company or
any of its Subsidiaries and any employee thereof, (ii) hire any person who was
an employee of the Company or any of its Subsidiaries at any time during the
180-day period immediately prior to the date on which such hiring would take
place (it being conclusively presumed by the Company and Executive so as to
avoid any disputes under this paragraph 6(b) that any such hiring within such
180-day period is in violation of clause (i) above), or (iii) call on, solicit
or service any customer, supplier, licensee, licensor or other business relation
of the Company or any of its Subsidiaries in order to induce or attempt to
induce such Person to cease doing business, or to reduce the amount of business
conducted, with the Company or such Subsidiary. In addition, during the
Employment Period and thereafter, Executive shall not in any way interfere with
the relationship between any such customer, supplier, licensee or business
relation and the Company or any of its Subsidiaries.
7. Company's Ownership of Intellectual Property.
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(a) Executive acknowledges that all Work Product is the exclusive
property of the Company. Executive hereby assigns all right, title and interest
in and to such Work Product to the Company. Any copyrightable work prepared in
whole or in part by Executive will be deemed "a work made for hire" under
Section 201(b) of the 1976 Copyright Act, and the Company shall own all of the
rights comprised in the copyright therein.
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(b) The Company and Executive each acknowledge the applicability of
Section 2870 of the California Labor Code. Accordingly, the provisions of
paragraph 7(a) shall not apply to, and the term "Work Product" shall not
include, any invention that Executive developed entirely on his own time without
using the Company's equipment, supplies, facilities, or trade secret information
except for those inventions that either: (i) relate at the time of conception or
reduction to practice of the invention to the Company's or any Subsidiary's
business, or to the actual or demonstrably anticipated research or development
of the Company or any Subsidiary; or (ii) result from any work performed by
Executive for the Company or any Subsidiary. Set forth on the attached "Excluded
Inventions Schedule" are the inventions Executive believes meet the criteria for
exclusion set forth above. Executive agrees to promptly advise the Company in
writing of any inventions developed after the Effective Date which Executive
believes meet the criteria for exclusion set forth above.
(c) Executive shall promptly and fully disclose all Work Product to the
Company and shall cooperate and perform all actions reasonably requested by the
Company (whether during or after the Employment Period) to establish, confirm
and protect the Company's right, title and interest in such Work Product.
Without limiting the generality of the foregoing, Executive agrees to assist the
Company, at the Company's expense, to secure the Company's rights in the Work
Product in any and all countries, including the execution of all applications
and all other instruments and documents which the Company shall deem necessary
in order to apply for and obtain rights in such Work Product and in order to
assign and convey to the Company the sole and exclusive right, title and
interest in and to such Work Product. If the Company is unable because of
Executive's mental or physical incapacity or for any other reason (including
Executive's refusal to do so after request therefor is made by the Company) to
secure Executive's signature to apply for or to pursue any application for any
United States or foreign patents or copyright registrations covering Work
Product belonging to or assigned to the Company pursuant to paragraph 7(a)
above, then Executive hereby irrevocably designates and appoints the Company and
its duly authorized officers and agents as Executive's agent and
attorney-in-fact to act for and in Executive's behalf and stead to execute and
file any such applications and to do all other lawfully permitted acts to
further the prosecution and issuance of patents or copyright registrations
thereon with the same legal force and effect as if executed by Executive.
Executive agrees not to apply for or pursue any application for any United
States or foreign patents or copyright registrations covering any Work Product
other than pursuant to this paragraph in circumstances where such patents or
copyright registrations are or have been or are required to be assigned to the
Company.
8. Delivery of Materials Upon Termination of Employment. As requested by
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the Company upon the termination of Executive's employment with the Company for
any reason, Executive shall promptly deliver to the Company all copies and
embodiments, in whatever form, of all Confidential Information and Work Product
in Executive's possession or within his control irrespective of the location or
form of such material and, if requested by the Company, shall provide the
Company with written confirmation that all such materials have been delivered to
the Company.
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9. Subsequent Inventions. Executive understands and agrees that all
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Intellectual Property Rights made, conceived, developed, or reduced to practice
by Executive, either alone or jointly with others, shall be disclosed to the
Company by Executive for six (6) months following the termination of Executive's
employment with the Company. Employee further agrees that all Intellectual
Property Rights made, conceived, developed or reduced to practice within six (6)
months following such termination shall be presumed to have been conceived
during Executive's employment with the Company and with the use of the Company's
Confidential Information, but such presumption may be overcome by Executive by a
showing that such Intellectual Property Rights were conceived after such
employment and without the use of any such Confidential Information. In the
event Executive is not able to rebut such presumption and prove that such
Intellectual Property Rights were conceived after such employment and without
the use of Confidential Information, Executive agrees to assign all right, title
and interest in such Intellectual Property Rights to the Company.
10. Disclosure. Following the termination of Executive's employment with
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the Company, Executive shall communicate the restrictions contained in this
Agreement to any Person he intends to be employed by, provide consulting
services to or otherwise represent. Executive hereby consents to the Company's
communication of the restrictions contained in this Agreement to any such
Person.
11. Enforcement; Remedies.
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(a) If, at the time of enforcement of the covenants contained in
paragraphs 6, 7, 8, 9 or 10 (the "Protective Covenants"), a court shall hold
that the duration or scope stated therein are unreasonable under circumstances
then existing, the parties hereto agree that the maximum duration or scope
reasonable under such circumstances shall be substituted for the stated duration
or scope and that the court shall be allowed to revise the restrictions
contained therein to cover the maximum period or scope permitted by law;
provided that in no event shall the duration or scope determined by such court
exceed the duration or scope set forth in this Agreement. Executive has
consulted legal counsel regarding the Protective Covenants and based on such
consultation has determined and hereby acknowledges that the Protective
Covenants are reasonable in terms of duration and scope and are necessary to
protect the goodwill of the Company's business and the Confidential Information.
(b) If Executive breaches, or threatens to commit a breach of, any of
the Protective Covenants, the Company shall have the following rights and
remedies, each of which rights and remedies shall be independent of the others
and severally enforceable, and each of which is in addition to, and not in lieu
of, any other rights and remedies available to the Company at law or in equity:
(i) The right and remedy to have the Protective Covenants
specifically enforced by any court of competent jurisdiction (without the need
to post a bond or other security), it being agreed that any breach or threatened
breach of the Protective Covenants
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would cause irreparable injury to the Company and that money damages would not
provide an adequate remedy to the Company; and
(ii) The right and remedy to require Executive to account for and
pay over to the Company any profits, monies, accruals, increments or other
benefits derived or received by Executive as the result of any transaction(s)
constituting a breach of the Protective Covenants.
(c) In the event of any breach or violation by Executive of any of the
Protective Covenants, the time period of such covenant with respect to Executive
(to the extent such covenant is limited in duration) shall be tolled until such
breach or violation is resolved.
12. Loss of Severance due to Competition.
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(a) The Executive shall not during the Employment Period and during the
period Executive is receiving any Severance Payment pursuant to paragraph 5(a)
(the "Noncompete Period"), for himself or on behalf of any other person, firm,
partnership, corporation, or other entity, engage, directly or indirectly,
either as an officer, director, employee, partner, consultant, individual
proprietor, agent, or otherwise (including, but not limited to, as an owner or
shareholder), in any business which (A) provides telecommunication services of
the type provided during the Employment Period by the Company and any of its
Subsidiaries (including, without limitation, (i) switched local service, (ii)
switched long-distance service, (iii) dedicated transport services, (iv)
co-locate and interconnect services and (v) data switched services and
including, without limitation, telecommunication services of the type provided
by the Company and any of its Subsidiaries to information service providers) or
(B)provides services of the type which the Company and any of its Subsidiaries
have taken significant actions during the Employment Period to begin providing
or of the type the Company or any of its Subsidiaries have indicated that they
plan to begin providing in any business plan or similar document delivered to
Executive during the Employment Period, in each case within any of the
Restricted Territories (as defined below); provided that the restrictions set
forth in this paragraph 12 shall not prohibit Executive from being a passive
owner of not more than 5% of the outstanding stock of any class of a corporation
which is publicly traded; and provided further that the restrictions set forth
in this paragraph 12 shall not restrict the activities of Executive to the
extent Executive has received the consent of the Board to such activities.
(b) For purposes of this Agreement, "Restricted Territories" shall mean
any states or comparable jurisdictions in which the Company or its Subsidiaries
are engaged in business during the Employment Period or have taken significant
actions to begin engaging in business during the Employment Period, including,
but not limited to, such states or comparable jurisdictions located within the
United States of America, Canada and Mexico. Executive acknowledges that the
geographic restrictions set forth above are reasonable and necessary to protect
the goodwill of the Company's business.
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(c) If Executive breaches any of the provisions of this paragraph 12,
Executive and the Company acknowledge and agree that the Company's sole remedy
for such breach shall be the termination of the Severance Payments otherwise
payable to Executive pursuant to paragraph 5(a) hereof.
C. General Provisions.
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13. Definitions.
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"Affiliate" of any particular Person means any other Person
controlling, controlled by or under common control with such particular Person,
where "control" means the possession, directly or indirectly, of the power to
direct the management and policies of a Person whether through the ownership of
voting securities, contract or otherwise.
"Cause" means (A) Executive's theft or embezzlement, or attempted theft
or embezzlement, of money or property of the Company or any of its Affiliates,
Executive's perpetration or attempted perpetration of fraud, or Executive's
participation in a fraud or attempted fraud, on the Company or any of its
Affiliates or Executive's unauthorized appropriation of, or Executive's attempt
to misappropriate, any tangible or intangible assets or property of the Company
or any of its Affiliates; (B) Executive's conviction or commission of a felony
or conviction for any crime involving acts which tend to insult or offend
community moral standards or public decency or that materially and adversely
affect the reputation or business activities of the Company or its Affiliates;
(C) Executive's substance abuse, including abuse of alcohol or use of illegal
narcotics, or other illegal drugs or substances, for which Executive fails to
undertake and maintain treatment within 15 days after requested by the
Corporation; (D) Executive's refusal to carry out any lawful instructions of the
Board of Directors that are the consistent with a reasonable, legitimate
business purpose following receipt of written notice of such instructions from
the Board of Directors; or (E) Executive's material breach of any provision of
this Agreement that results in material harm to the Company, and which is
incapable of cure or which is not cured within 15 days after written notice
thereof to Executive.
"Confidential Information" means all information of a confidential or
proprietary nature (whether or not specifically labeled or identified as
"confidential"), in any form or medium, that is or was disclosed to, or
developed or learned by, Executive in connection with Executive's prior
relationship with the Company or during the Employment Period and that relates
to the business, products, services, research or development of the Company or
its suppliers, distributors or customers. Confidential Information includes but
is not limited to the following: (i) internal business information (including
information relating to strategic and staffing plans and practices, business,
training, marketing, promotional and sales plans and practices, cost, rate and
pricing structures and accounting and business methods); (ii) identities of,
individual requirements of, specific contractual arrangements with, and
information about, the Company's suppliers, distributors and customers and their
confidential information; (iii) trade secrets, know- how, compilations of data
and analyses, techniques, systems, formulae, research, records, reports,
manuals, documentation, models, data and data bases relating thereto; and (iv)
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inventions, innovations, improvements, developments, methods, designs, analyses,
drawings, reports and all similar or related information (whether or not
patentable). Confidential Information shall not include information that
Executive can demonstrate: (a) is publicly known through no wrongful act or
breach of obligation of confidentiality; (b) was lawfully known to Executive
prior to the time Executive began rendering services to the Company and its
predecessors; or (c) was rightfully received by Executive from a third party
without a breach of any obligation of confidentiality by such third party.
"Disability" means the inability, due to illness, accident, injury,
physical or mental incapacity or other disability, of Executive to carry out
effectively his duties and obligations to the Company or to participate
effectively and actively in the management of the Company for a period of at
least 60 consecutive days or for shorter periods aggregating at least 120 days
(whether or not consecutive) during any twelve-month period, as determined in
the reasonable good faith judgment of the Board.
"Intellectual Property Rights" means all inventions, innovations,
improvements, developments, methods, processes, designs, analyses, drawings,
reports and all similar or related information (whether or not patentable or
reduced to practice) and any copyrightable work, trade xxxx, trade secret or
other intellectual property rights which relate to the Company's or any of its
Subsidiaries' actual or anticipated business.
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Subsidiary" means, with respect to any Person, any corporation,
limited liability company, partnership, association or other business entity of
which (i) if a corporation, a majority of the total voting power of shares of
stock entitled (without regard to the occurrence of any contingency) to vote in
the election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof, or (ii)if a limited
liability company, partnership, association or other business entity, a majority
of the partnership or other similar ownership interest thereof is at the time
owned or controlled, directly or indirectly, by that Person or one or more
Subsidiaries of that Person or a combination thereof. For purposes hereof, a
Person or Persons shall be deemed to have a majority ownership interest in a
limited liability company, partnership, association or other business entity if
such Person or Persons shall be allocated a majority of limited liability
company, partnership, association or other business entity gains or losses or
shall be or control any managing director or general partner of such limited
liability company, partnership, association or other business entity.
"Work Product" means all inventions, innovations, improvements,
developments, methods, processes, designs, analyses, drawings, reports, research
and development of existing or future products or services which were or are
conceived, reduced to practice, contributed to or developed or made by Executive
(whether alone or jointly with others) while employed (both before and after the
Effective Date) by the Company (or its
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predecessors, successors or assigns) and its Subsidiaries and all similar or
related information (whether or not patentable or reduced to practice) and any
copyrightable work, trade xxxx, trade secret or other intellectual property
rights, any of which relate to the Company's or any of its Subsidiaries' actual
or anticipated business.
14. Survival. The provisions set forth in paragraphs 6 through 32 of this
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Agreement shall survive and continue in full force and effect in accordance with
their terms notwithstanding any termination of the Employment Period.
15. Notices. Any notice provided for in this Agreement shall be deemed to
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have been given when delivered personally to the recipient, sent to the
recipient by reputable express courier (charges prepaid), telecopied (with hard
copy to follow) or 5 days after mailed to the recipient by certified or
registered mail, return receipt requested and postage prepaid. Such notice will
be sent to Executive or to the Company at the address set forth below:
Notices to Executive:
Xxxxxxx X. Xxxxxxx
0000 Xxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000 (Home)
Notices to the Company:
Pac-West Telecomm, Inc.
0000 X. Xxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Secretary
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement shall be deemed to have been given when so delivered
or 5 days after mailed.
16. Severability. Whenever possible, each provision of this Agreement
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shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
17. No Strict Construction. The language used in this Agreement shall be
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deemed to be the language chosen by the parties hereto to express their mutual
intent, and no rule of
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strict construction shall be applied against any party. The use of the word
"including" herein shall mean "including without limitation."
18. Counterparts. This Agreement may be executed in separate counterparts
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(including by means of telecopies signature pages), each of which is deemed to
be an original and all of which taken together constitute one and the same
agreement.
19. Choice of Law. All issues and questions concerning the construction,
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validity, enforcement and interpretation of this Agreement and any schedules
shall be governed by, and construed in accordance with, the laws of the State of
California, without giving effect to any choice of law or conflict of law rules
or provisions (whether of the State of California or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than the
State of California.
20. Consent to Personal Jurisdiction. Executive hereby expressly consents
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to the jurisdiction and venue of the Superior Court of the State of California
in and for the County of San Xxxxxxx or the District Court for the Eastern
District of California for any lawsuit filed by either party arising from or
relating to this Agreement.
21. Complete Agreement. This Agreement, those documents expressly referred
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to herein embody the complete agreement and understanding among the parties and
supersede and preempt any prior understandings, agreements or representations by
or among the parties, written or oral, which may have related to the subject
matter hereof in any way.
22. Successors and Assigns. Except as otherwise provided herein, this
----------------------
Agreement shall bind and inure to the benefit of and be enforceable by
Executive, the Company, the Investors and their respective successors and
assigns. The Investors shall be permitted to assign any and all of their rights
pursuant to this Agreement to any other holder of Common Stock of the Company
without obtaining the consent or approval of any other party hereto.
23. Remedies. Each of the parties to this Agreement will be entitled to
--------
enforce its rights under this Agreement specifically, to recover damages and
costs (including attorney's fees) caused by any breach of any provision of this
Agreement and to exercise all other rights existing in its favor. The parties
hereto agree and acknowledge that money damages may not be an adequate remedy
for any breach of the provisions of this Agreement and that any party may in its
sole discretion apply to any court of law or equity of competent jurisdiction
(without posting any bond or deposit) for specific performance and/or other
injunctive relief in order to enforce or prevent any violations of the
provisions of this Agreement.
24. Amendment and Waiver. The provisions of this Agreement may be amended
--------------------
and waived only with the prior written consent of the Company and Executive.
25. Business Days. If any time period for giving notice or taking action
-------------
hereunder expires on a day which is a Saturday, Sunday or holiday in the state
in which the
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Company's chief executive office is located, the time period shall be
automatically extended to the business day immediately following such Saturday,
Sunday or holiday.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first written above which shall be effective as of the Closing Date.
PAC-WEST TELECOMM, INC.
By: /s/ Xxx Xxxx
--------------------------------------------------
Name: Xxx Xxxx
Its: Compensation Committee Chair, Subject to
ratification by Resolution of the Board of Directors
EXECUTIVE
/s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------------------
Xxxxxxx X. Xxxxxxx
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EXCLUDED INVENTIONS SCHEDULE
None.
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