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EXHIBIT 10.22
EMPLOYMENT AGREEMENT
This Employment Agreement is executed this 19th day of November, 1996,
effective as of April 1, 1996, by and between XXXXXXX X. XXXXXXXX, XX. (the
"Executive"), and COLUMBIA DBS MANAGEMENT, LLC, a Georgia limited liability
company (the "Company").
W I T N E S S E T H:
WHEREAS, the Company is engaged in the business of providing management
services to a group of affiliated entities substantially all of the equity
interests of which are currently owned directly or indirectly by Columbia DBS
Holdings, LLC, a Delaware limited liability company ("Holdings") (Holdings, the
Company and all entities controlled by Holdings or the Company whether currently
existing or formed in the future are referred to collectively as the "Group").
WHEREAS, Holdings is the successor entity to DBS Holdings, L.P., a
Delaware limited partnership, that was converted into a Delaware limited
liability company by filing pursuant to Section 18-214 of the Delaware Limited
Liability Company Act and Section 17-219 of the Delaware Revised Uniform Limited
Partnership Act effective on November 19, 1996; and
WHEREAS, the Group is engaged in the business of providing services
delivered over direct broadcast satellite frequencies; and
WHEREAS, the Executive desires to provide services to the Company and
the Company desires to obtain the services of the Executive in connection with
the business of the Group;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants of the parties hereto, the parties hereby agree as follows:
1. Term. The term of this Agreement (the "Term") shall commence
effective April 1, 1996, and shall end on March 31, 1997, provided, however,
that commencing in 1997, the Term shall automatically be extended until March 31
of the following year, unless either (i) the Executive shall, no later than
January 31 in the year on which the Term is scheduled to end, have given notice
to the Company of his resignation, (ii) the board of managers of the Company
(the "Board") shall, no later than January 31, in the year on which the Term is
scheduled to end, have given notice to the Executive that the Executive's
performance has not been satisfactory to the Board, or (iii) the Board shall,
prior to January 31 in the year on which the Term is scheduled to end, have
determined to cease the operations of the Group.
2. Employment. During the Term, the Executive shall serve the Company
as its President and Chief Executive Officer or in such other comparable office
or offices of the Company or any other member of the Group as the Board may
designate from time to time, and shall, except as otherwise specified by the
Board, be responsible, under the general supervision of the Board, for the
overall management of the Company and the Group. The Executive shall serve in
such capacity on a full-time basis, and shall use his best efforts to promote
the business and interests of the Company and the Group, to diligently,
faithfully and to the best of his abilities perform all tasks and duties
reasonably assigned to him by the Board, to comply with
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the rules, regulations, policies and procedures of the Company, and to act and
comport himself at all times in the best interests of the Company and the Group.
The Company contemplates that the Executive's principal place of business will
be in Roswell, Georgia.
3. Salary. From April 1, 1996, through December 31, 1996, the Executive
shall be paid a salary at the rate of $13,611 per month. From January 1, 1997,
until March 31, 1998, the Executive shall be paid a salary at a rate of $15,000
per month. The Board shall review the salary of the Executive by January 31,
1998, for an increase effective April 1, 1998. By January 31 of each year
thereafter, the Board shall review the Executive for a salary increase, provided
that any such increases in salary shall be in the sole judgment and discretion
of the Board.
4. Bonuses. On or before January 31 in 1997 and in each year
thereafter, provided in each case that the Executive continues to be employed by
the Company or the Group on such date, the Company or the Group shall pay to the
Executive a bonus as determined by the Board in its discretion in light of the
Executive's performance during the fiscal year preceding the bonus.
5. Expenses. The Executive shall be reimbursed for any reasonable
out-of-pocket expenses which the Executive may incur in connection with his
services to the Company or the Group, consistent with the Company or the Group's
policies and procedures for reimbursement of expenses.
6. Benefits. During the Term, the Company shall make available to the
Executive life insurance, health and dental insurance, disability insurance,
vacation, participation in 401(k) plans, and other benefits to the extent and
upon the terms that are offered generally to employees of the Company or the
Group or to employees of Columbia Capital Corporation ("CCC"); provided,
however, that such benefits shall at a minimum include term life insurance with
a face amount of $1 million.
7. Termination.
a. The Company may terminate the employment of the Executive under this
Agreement in the event that the Board determines that the Executive (a) has
materially and substantially breached his obligations under this Agreement,
provided that the employment of the Executive shall not be terminated under this
clause unless the Executive is given notice in writing that the conduct in
question constitutes grounds for termination under this Section 7 and the
Executive is allowed at least thirty (30) days to remedy the refusal or failure,
(b) has been convicted of a felony constituting a crime of moral turpitude
(whether or not in conjunction with the performance by the Executive of his
duties under this Agreement), or (c) has through willful misconduct or gross
negligence engaged in an act or course of conduct that cause material injury to
the Company or any member of the Group (any of the foregoing constituting
"Cause"). If the employment of the Executive under this Agreement is terminated
under this Section 7(a), the Board shall give written notice to the Executive
specifying the cause of such action. Upon a termination of employment under this
Section 7(a), the Company and the Group shall be relieved of all further
obligations under this Agreement.
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b. For purposes of this Agreement, the resignation by the Executive
from the Company shall be deemed "Voluntary Termination", provided, however,
that in the event that the Board requires the Executive to relocate his
principal place of business outside of the Atlanta metropolitan area and the
Executive terminates his employment within 60 days thereafter, such termination
shall not constitute "Voluntary Termination".
8. Holdings Interest.
a. Effective on the date this Agreement is executed, the Company has
caused Holdings to issue to the Executive, and the Executive has purchased, a
member interest in Holdings (the "Purchased Interest"), as evidenced by the
limited liability company agreement of Holdings dated as of the date this
Agreement is executed (the "LLC Agreement"), in consideration for the commitment
by the Executive to contribute to Holdings, in parity with equity up to a total
amount of $200,000. Such Purchased Interest shall entitle with respect to such
contributions. The Purchased Interest shall be subject to all of the provisions
of the LLC Agreement (including the provisions permitting the issuance of
additional member interests) and this Agreement. Any interest in any successor
entity to Holdings for which the Purchased Interest may be exchanged or into
which it may be converted by merger or otherwise shall be subject to the terms
of the governing instruments of such successor entity and to the provisions of
this Agreement. Any references to the Purchased Interest in this Agreement shall
include the interests in any such successor entity into which the Purchased
Interest may be converted or for which it may be exchanged. Any references in
this Agreement to Holdings shall include such successor entity to Holdings.
b. Simultaneous with the execution of this Agreement, the Executive is
entering into a loan agreement with CCC pursuant to which CCC is agreeing to
advance to the Executive a total of $160,000, when and as necessary to fund the
equity contributions by the Executive described above in excess of the first
$40,000, with such advance secured by the Purchased Interest, and evidenced by a
promissory note bearing interest at the rate of 10% per annum without
compounding, payable in full at maturity, and maturing on the earliest to occur
of (i) April 1, 2001, or (ii) receipt by the Executive or other owner of the
Purchased Interest of proceeds form the sale of all of the Purchased Interest.
The note will be subject to a mandatory prepayment equal to (i) 100% of all cash
distributions, other that distribution to pay taxes, received by the Executive
from Holdings with respect to the Purchased Interest, plus (ii) 60% of the cash
proceeds received by the Executive from a sale of less than all of the Purchased
Interest. For this purpose, distributions to pay taxes shall mean distributions
by Holdings, expressly contemplated under its LLC Agreement or other governing
instruments, or otherwise earmarked or designated by Holdings, to enable its
owners to pay their state, federal and local income taxes on their distributive
shares of Holdings' items of income or gain.
c. The Purchased Interest shall be subject to the provisions of Section
10 of this Agreement. The Executive shall not transfer, convey, assign pledge or
encumber the Purchased Interest (other than the grant of a security interest to
CCC in accordance with Section 8(b) of this Agreement or a "Permitted Transfer,"
as defined below) prior to the termination of the Executive's employment by the
Company and the failure of the Company, as the case may be, within 90 days
thereafter, to give notice of exercise of its rights hereunder to purchase such
Purchased Interest. For purpose of this Section 8(c), a "Permitted Transfer"
means a transfer of all or portion of the Purchased Interest to any of (i) the
spouse or descendants of the
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Executive, (ii) any trust the beneficiaries of which are any one or more of the
Executive, his spouse and descendants (or such other persons as may be named
therein as beneficiaries in the event of the death of the foregoing), and (iii)
any corporation or other entity all of the equity owners of which are persons
described in clauses (i) and (ii) hereof; provided in each such case, however,
that (A) the transferee agrees in writing to be bound by the terms of the LLC
Agreement and the provisions of this Agreement applicable to such Purchased
Interest, (B) the transferee takes the Purchased Interest subject to the pledge
by the Executive to CCC pursuant to Section 8(b) of this Agreement, (C) such
transfer does not, in the reasonable judgment of the Company, have adverse tax
consequences upon the Company or the Group or the Group's partners or members or
violate any applicable securities laws and (D) the transfer otherwise complies
with the terms of the LLC Agreement.
9. Restricted Interests. The Company hereby grants to the Executive,
effective as of the date this Agreement is executed, member interests in
Holdings (the "Restricted Interests"). The terms of the Restricted Interests
shall be as set forth below:
a. The LLC Agreement shall provide that the Restricted Interests will
have, at issuance, a capital account of $0.00, that the Executive shall not be
entitled to any distributions upon the Restricted Interests until all debt and
equity contributions to Holdings have been repaid in full, that after such debt
and equity have been repaid the Executive shall be entitled to 3% of the
remaining distributions, subject to dilution with respect to capital
contributions in excess of $12.5 million. The Restricted Interests shall be
subject to all of the provisions of the LLC Agreement and this Agreement. Any
interest in any successor entity to Holdings into which the Restricted Interest
may be exchanged or converted by merger or otherwise shall be subject to the
terms of the governing instruments of such successor entity and to the
provisions of this Agreement. Any references to the Restricted Interests in this
Agreement shall include the interests in any such successor entity into which
the Restricted Interests may be converted.
b. That portion of the Restricted Interests indicated below shall vest
at the time the Group first serves the "Number of Households" indicated below,
if not vested or forfeited prior thereto:
Portion of Restricted
Interest Vested Number of Households
--------------- --------------------
1/3 250,000
2/3 500,000
all 750,000
The number of households shall be the most recent number reported by Claritas,
or such other service as the Group obtains in replacement therefore.
c. Any Restricted Interests that have not vested or been forfeited
prior to the earliest to occur of (i) the date upon which Holdings completes a
public offering of its equity securities, (ii) the date upon which CCC and its
officers, directors, stockholders and employees cease to own, directly or
indirectly, in the aggregate at least 50% of the equity interests of Holdings
held by them on the date of this Agreement, and (iii) March 31, 1998., shall
become fully vested and
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cease to be restricted on that date, provided that the Executive remains in the
employ of the Group through that date.
d. Upon termination of employment of the Executive by the Group for
Cause or by reason of Voluntary Termination, all unvested Restricted Interests
shall be forfeited. Upon termination of employment of the Executive by the Group
for any other reason, all unvested Restricted Interests shall thereupon become
fully vested and unrestricted.
e. The Restricted Interests shall be subject to the provisions of
Sections 10 of this Agreement. The Executive shall not transfer, convey, assign,
pledge or encumber any Restricted Interest prior to the vesting or forfeiture of
such Restricted Interest.
10. Repurchase by Holdings. Upon the termination of the Executive's
employment by the Company for Cause or by Voluntary Termination prior to April
1, 1998, Holdings may, by written notice given not later than 90 days after the
dated of such termination elect to repurchase, or in lieu thereof permit any
other person or persons designated by it to purchase, the Purchased Interest and
all Restricted Interests acquired by the Executive pursuant to this Agreement
that have vested prior to termination in accordance with Section 9 of this
Agreement, upon the following terms:
a. Holdings or its designee (the "Purchaser") shall pay to the
Executive fair market value for all Purchased Interest and vested Restricted
Interests then held by the Executive. Fair market value shall be determined by
agreement between the Purchaser and the Executive or, in the absence of such
agreement within 30 days after notice by Holdings of its election to repurchase,
by an appraisal conducted by three independent appraisers: one appointed by the
Purchaser, one by the Executive, and one by the first two. The Purchaser and the
Executive shall direct each appraiser to determine the fair market value of the
Purchase Interest and the vested Restricted Interests, taking into account all
relevant factors, within 60 days after their appointment, and the "fair market
value" for purposes of this Agreement shall be the average of the two appraisals
of the three that are closet to one another.
b. The Purchaser shall pay to the Executive fair market value for all
vested Restricted Interests then held by the Executive. Fair market value of the
vested Restricted Interests shall be determined by agreement or appraisal as
specified above.
c. Within 30 days after the price of the Purchased Interest and
Restricted Interests has been determined, the Purchaser shall pay such amount to
the Executive, and the Executive shall convey to the Purchaser good and clear
title, free of any lien, encumbrance, charge or claim (other than the interest
granted to CCC in accordance with Section 8(b) of this Agreement), to the
Purchased Interest and Restricted Interests. Such amount shall be paid in cash,
provided, however, that if such amount exceeds paid in cash, provided, however,
that if such amount exceeds $750,00 and the Purchaser is Holdings, then the
Purchaser shall have the right to pay $500,000 in cash or the amount necessary
to pay the Executive's taxes owed in that year with respect to the transaction,
whichever is higher, and the balance in the form of a promissory note with
interest at a floating prime rate, paid quarterly in arrears, and principal
payable in three equal annual installments.
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d. After April 1, 1998, neither the Purchased Interest nor the
Restricted Interest shall be subject to any right of repurchase hereunder.
11. Preemptive Rights. The LLC Agreement shall confer upon the
Executive preemptive rights, in parity with all other members of Holdings, with
respect to the issuance by Holdings of additional equity at such time as, and to
the extent that, the capitalization of Holdings will, after issuance of such
additional equity, exceed $10.0 million (hereinafter "Proportionate Preemptive
Rights"). In addition to the Proportionate Preemptive Rights, the Company agrees
that to the extent Columbia DBS Investors, L.P., a Delaware limited partnership
("Investors") makes capital contributions to Holdings in excess of $9,500,000
but less than $20,000,000 ("Investors Additional Capital Contribution"), the
Company shall cause Investors to permit the Executive to make (or reimburse
Investors for) a proportionate part of Investors Additional Capital Contribution
and thereby acquire an equivalent proportionate part of the additional interest
in Holdings that would otherwise have been acquired by Investors with respect to
Investors Additional Capital Contributions (hereinafter "Special Preemptive
Rights"). The proportionate part of Investors Additional Capital Contribution
and the proportionate part of the additional interest with respect to thereto
that the Executive may acquire hereunder shall equal 30% multiplied by a
fraction, the numerator of which is the capital contribution to be made by the
Executive under Section 8(a) hereof, and the denominator of which is $10
million. Neither CCC nor any member of the Group shall have any obligation to
lend any portion of the purchase price to the Executive with respect to the
exercise of the Proportionate Preemptive Rights or the Special Preemptive
Rights. Any interest purchased by the Executive pursuant to his Proportionate
Preemptive Rights or Special Preemptive Rights shall be treated as a Purchased
Interest for purposes of this Agreement (including the repurchase rights under
Section 10). The Executive shall exercise his Special Preemptive Rights within
ten (10) business days after the Company notifies the Executive that Investors
have made an Investors Additional Capital Contribution with respect to which the
Special Preemptive Rights have arisen and has specified the amount thereof. The
Executive shall exercise his Special Preemptive Rights by reimbursing Investors
for the proportionate part of Investors Additional Capital Contribution that the
Executive is permitted and elects to make within the time period set forth in
the preceding sentence. If the Executive fails to exercise his Special
Preemptive Rights within the time period and in the manner provided above, such
rights shall automatically expire with respect to all Investors Additional
Capital Contributions set forth in the Company's notice.
12. Representation and Warranty. The Executive represents and warrants
to the Company that the execution and delivery by the Executive of this
Agreement and his performance of his obligations hereunder will not violate,
contravene or conflict with any employment agreement, consulting agreement,
confidentiality agreement, non-competition agreement or other agreement or
contract to which he is a party or by which he may be bound.
13. Acknowledgements.
(a) The Group is in the business of marketing, selling and distributing
television services delivered over direct broadcast satellite frequencies. As
used in this Agreement, the term "Competing Business" shall mean a person or
entity engaged in any business which is the same or essentially the same as the
business of the Group and that conducts or transacts its business in any county,
city, or zip code in which the Group conducts or transacts its business.
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(b) The Group has expended, and expects to continue to expend,
substantial resources to develop business methods for marketing, distributing,
and selling services delivered over direct broadcast satellite frequencies.
Additionally, Executive has and shall receive experience and information
pertaining to the Group's business, sales and marketing methods and methods of
operation.
(c) Executive acknowledges the necessity of the restrictive covenants
set forth in this Agreement to protect the Group's legitimate interests in the
proprietary and confidential information of the Group and to protect the
customer relations and the goodwill with customers and suppliers that the Group
has established at substantial investment. Executive also acknowledges and
agrees that any violation of the restrictive covenants set forth in this
Agreement would bestow an unfair competitive advantage upon any competing
business to whom Executive might agree to render services or disclose
confidential information.
Executive acknowledges that the Group's business is highly specialized
and during his/her employment with the Group, Executive has had and/or will have
access to the various proprietary information of the Group, including, but not
limited to, technical and non-technical data; methods; techniques; processes;
finances; actual or potential customer and supplier information and lists;
marketing strategies; margins, prices, operations; existing and future services;
and other financial, sales, marketing, and operations information, whether
written or otherwise ("Proprietary Information") . Documents and information
regarding these factors are highly confidential and subject to efforts that are
reasonable under the circumstances to maintain their confidentiality.
Furthermore, this Proprietary Information is not generally known in the
industry. The Executive acknowledges that such Proprietary Information and trade
secrets are owned and shall continue to be owned solely by the Group.
(e) Executive's duties in the course of his employment with the Group
will include high level managerial functions relating to the various aspects of
the Group's business including the development and implementation of business
strategies and plans involving the areas of marketing, sales, pricing, customer
service and relations, business development and diversification.
(f) Executive's duties in the course of his employment with the Group
will include functions and duties which substantially affect the Group's
business in the cities, counties or zip codes set forth on Schedule 1 hereto and
Executive will have Proprietary Information relating to the Group's business
with regard to the cities, counties or zip codes set forth on Schedule 1 hereto.
14. Agreement Not to Compete.
Executive agrees that during his employment by the Company and for a
one (1) year period following the termination of Executive's employment with the
Company and any member of the Group, whether such termination is voluntary or
involuntary, with or without cause, Executive will not, without the prior
written consent of the Company:
(a) Accept employment or affiliate with any Competing Business
performing duties the same as or substantially similar to the duties he provided
for the Company or any member
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of the Group as set forth in Section 13(e) ("Duties") within the prohibited
geographical area as set forth on Schedule 1 hereto ("Geographical Areas"); or
(b) Accept any position or affiliation with a Competing Business, in
which Executive would, in the regular and ordinary course of business, of
necessity be called upon, required, or expected to reveal, base judgments on, or
otherwise use Proprietary Information or Trade Secrets (as hereinafter defined)
that Executive received, obtained, or acquired during, or as a consequence of,
his employment with the Group. It is the intent of the parties hereto that
Executive shall be prohibited from using the training, business goodwill, and
Proprietary Information, including Trade Secrets, gained by the Executive from
the Group, to directly injure the Group in its ability to carry on its business
and compete within the time limit set forth in this Section. Notwithstanding the
above, this Section 14(b) shall only apply to Competing Businesses which conduct
business in the cities, counties, or zip codes which the Executive's duties
substantially affected or as to which the Executive had access to confidential
information or Proprietary Information as set forth in Section 13(f).
15. Non-solicitation of Customers. The Executive Agrees that (except
for services rendered for the Group's benefit) during his employment with the
Group and for a period of two (2) years immediately following the termination of
such employment relationship, whether such termination is voluntary or
involuntary or with or without cause, the Executive shall not solicit, contact,
or call upon any customer or customer prospect of the Group, or any
representative of any customer or prospect of the Group, with a view toward sale
or providing of any service or product competitive with any service or product
sold, provided or under development by the Group during the Executive's
employment with the Group.
16. Non-disclosure of Proprietary and Confidential Information. The
Executive covenants, and agrees that, for so long as the Executive remains an
employee of the Group and for a two (2) year period following the Executive's
termination, whether such termination is voluntary or involuntary or with or
without cause, all Proprietary Information will be kept in strict confidence and
trust by the Executive. The Executive agrees that during such time he will not,
directly or indirectly, without the written consent of the Company, divulge,
use, appropriate, or disclose (except in performing his obligations with the
Group during his employment with the Group) any Proprietary Information of the
Group on his own behalf or on behalf of any person, firm, partnership,
association, corporation, business organization, entity, or enterprise.
17. Non-disclosure of Trade Secrets. The Executive agrees that until
Proprietary Information which constitutes a "Trade Secret" (as hereinafter
defined) becomes a part of the public domain by independent discovery or
development through no fault of the Executive, he will not, directly or
indirectly, use, appropriate, or disclose any trade secret (except in performing
his obligations to the Group during his employment with the Group) to benefit a
competitor, customer, individual, corporation, or other entity, without the
express, written permission of the Company. As used herein, the term "Trade
Secret" means information, including, but not limited to, technical or
non-technical data, formulas, patterns, compilations, programs, devices, methods
and techniques of doing business, drawings, designs, processes, financial data,
financial plans, product or service plans, and lists of actuator potential
customers or suppliers which: (i) derive economic value, actual or potential,
from not being generally known to, and not being readily ascertainable by proper
means by, other persons who can obtain
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economic value from their disclosure or use; and (ii) are the subjects of
efforts that are reasonable under the circumstances to maintain their secrecy.
18. Ownership of Intellectual Property. Any inventions, patents,
licenses, copyrights, computer software, computer programs, or other
intellectual property developed by the Executive as part of his performance of
services on behalf of the Company shall be the property of the Company, as the
case may be.
19. Non-solicitation of Employees. The Executive agrees that (except
for the Group's benefit) during his employment with the Company or any member of
the Group and f or a period of two (2) years immediately following the
termination of such employment relationship, whether such termination is
voluntary or involuntary or with or without cause, the Executive shall not,
directly or indirectly, except with the written consent of the Company, solicit,
attempt to solicit, encourage, divert, or attempt to cause, any employee or
prospective employees of the Group to terminate and/or leave the employment of
the Group for the Executive's own behalf or on behalf of any person, firm,
partnership, association, corporation, business organization, entity, or
enterprise.
20. Company Property. The Executive agrees that under no circumstances
shall the Executive, upon or after termination of his/her employment whether
such termination is voluntary or involuntary, with or without cause, remove from
the Group Is offices or premises any of the Group's books, business records,
documents, customer lists, employee lists, pricing information, trade secrets,
or other confidential information or copies of such information without the
express, written permission of the Group. The Executive agrees that he will not
use, cause to be used, or appropriate Group property to benefit a competitor,
customer, individual (including himself), corporation, or other entity (except
in performing his obligations to the Group during his employment with the
Group), without the express, written permission of the Company.
21. Construction of Covenants. Each provision, Section, and subsection
of this Agreement is declared to be severable from every other provision,
Section, and subsection and constitutes a separate and distinct covenant.
22. Survival of Certain Terms. This Agreement governs the terms and
conditions of employment. This Agreement shall terminate at termination of
employment, except that Sections 9, 10 and 13-20 pertaining to post-employment
obligations shall remain in full force to the extent that such Sections so
provide.
23. Violations and Remedies. The Executive acknowledges that a breach
of any restrictive covenant will irreparably and continually damage the Group,
for which money damages may not be adequate. Consequently, the Executive agrees
that in the event that he breaches or threatens to breach any of the covenants,
the Company and the Group shall be entitled to: (1) preliminary and permanent
injunctions to prevent the continuation of such harm; and (2) such money damages
as may be appropriate and provable.
24. Withholding. All payments required to be made by the Company
hereunder to the Executive shall be subject to the withholding of such amounts
relating to taxes as the
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Company may reasonably determine it should withhold pursuant to any applicable
law or regulation.
25. Injunctive Relief. The Company and the Executive agree that,
without limitation of the rights of the Company with respect to any other breach
of this Agreement, the harm to the Company arising from any breach by the
Executive of Sections 9, 10, and 13-20 of this Agreement could not adequately be
compensated for by monetary damages, and accordingly the Company or any other
member of the Group shall, in addition to any other remedies available to it at
law or in equity, be entitled to obtain preliminary and permanent injunctive
relief against such breach.
26. Governing Law. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of Georgia, without
regard to the conflict of law provisions thereof.
27. Notices. All communications, notices and disclosures required or
permitted to be given under this Agreement shall be in writing and shall be
deemed to have been duly given upon receipt when delivered by hand, one (1) day
after dispatch when sent by certified first-class-mail, postage prepaid, return
receipt requested, or by overnight courier maintaining records of receipt; or on
the date of dispatch when sent by facsimile transmission during normal business
hours with telephone confirmation of receipt. Notices shall be addressed as
follows or to such other address as the parties hereto shall specify by written
notice:
If to the Company:
Columbia DBS Management, LLC
000 Xxxxxxx Xxxxxx Xxxx
Xxxxxxxx X-000
Xxxxx X-000
Xxxxxxx, XX 00000
Attn: Board of Managers
Telephone: 000-000-0000
Facsimile: 000-000-0000
and:
Columbia Capital Corporation
Suite 300
000 X. Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attn: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Executive:
Xxxxxxx X. Xxxxxxxx, Xx.
00 Xxxxxxxxx Xxxx
00
Xxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
28. Entire Agreement; Amendments. This Agreement constitutes the entire
agreement between the parties pertaining to the subject matter hereof and
supersedes all prior and contemporaneous agreements, understandings,
negotiations and discussions of the parties, whether oral or written, relating
to the subject matter hereof, and there are no warranties, representations or
other agreements between the parties in connection with the subject matter
hereof, except as specifically set forth herein or, therein. No amendment,
supplement, modification, waiver or termination of this Agreement shall be
binding unless executed in writing by the party to be bound thereby. No waiver
of any of the provisions of this Agreement shall constitute a waiver of any
other provision of this Agreement, whether or not similar, nor shall such waiver
constitute a continuing waiver unless otherwise expressly provided thereby.
29. Miscellaneous. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their heirs, executors, administrators,
legal representatives, successors and assigns. The obligations of the Executive
under this Agreement may not be assigned without the express written consent of
the Company or the LLC . Nothing contained herein is intended to create any
rights enforceable by any person not a party hereto or the permitted successor
or assign thereof. If any term, provision, section, clause or part of this
Agreement, or the application thereof under certain circumstances, is held
invalid or unenforceable for any reason, the remainder of this Agreement, or the
application of such term, provision, Section, clause or part under other
circumstances, shall not be affected thereby and shall remain in effect to the
greatest extent and scope that is valid and enforceable. This Agreement may be
executed in counterparts, all of which together shall constitute a single
instrument.
IN WITNESS WHEREOF, the undersigned have set their hands as of the day
and year first above written.
COLUMBIA DBS MANAGEMENT, LLC XXXXXXX X. XXXXXXXX, XX.,
the Executive
By: By:
------------------------------ -----------------------------
a manager
