EMPLOYMENT AGREEMENT
THIS
EMPLOYMENT AGREEMENT (“Agreement”),
executed this 2nd
day of
January 2008 (the “Effective
Date”)
is
between ATSI Communications, Inc., a Nevada corporation (the “Employer”),
and
Xxxxxx
X. Xxxxx,
an
individual resident of the State of Texas (“Employee”).
RECITALS:
| A. |
Employer
considers the maintenance of a sound and effective management team,
including Employee, essential to protecting and enhancing its best
interests and those of its
stockholders.
|
| B. |
Employer
desires to offer employment to Employee and Employee desires to be
employed by Employer.
|
| C. |
Employer
and Employee agree to enter into an Employment Agreement providing
for a
one-year term with automatic annual renewal on the terms and conditions
herein provided.
|
NOW,
THEREFORE, in consideration of Employer’s agreement to employ Employee pursuant
to the terms of this Agreement and Employee’s future employment with Employer,
and other good and valuable consideration, the parties agree as
follows:
Section
1. Employment. Employer
hereby employs Employee, and Employee hereby accepts employment, upon the terms
and subject to the conditions stated in this Agreement.
Section
2. Duties. Employee
shall be employed as the CEO
& President of
Employer, or such other comparable positions with Employer to which he may
be
appointed by the Board of Directors of Employer (the “Board”).
Employee shall have such duties and responsibilities as are normally associated
with the foregoing position and such additional duties and responsibilities
as
he may be assigned from time to time by the Board. It is understood that
Employee may be requested from time to time to provide assistance or services
to
subsidiary and affiliated companies of Employer or other company that are wholly
or partially owned by Employer (each an “Affiliate”).
Employee shall perform such services without additional compensation other
than
the compensation set forth in this Agreement. Employee agrees to devote his
full
work time and best efforts to the performance of the duties as an employee
of
Employer and to the performance of such other duties as assigned him from time
to time by Employer.
Section
3. Term. The
Agreement shall commence on the Effective Date and continue until the last
day
of the fiscal year in which the Effective Date occurs (the “Initial
Term”).
Unless Employer or Employee shall provide the other with at least 60 days
written notice, this Agreement shall automatically renew thereafter on the
first
day of each fiscal year of Employer for an additional one year term commencing
on such first day of each fiscal year and continuing until the last day of
such
fiscal year (each, an “Extension
Term”
and
together with the Initial Term, the “Employment
Period”).
The
foregoing notwithstanding, the Employment Period may be terminated early in
accordance with Section 6 of this Agreement.
Section
4. Compensation
and Benefits. In
consideration for the services of Employee hereunder, Employer shall compensate
Employee as follows during the Employment Period:
(a) Base
Salary. Employer
shall pay Employee a base salary at the rate of at least $150,000 per year,
payable in accordance with the regular payroll practices of Employer for
executives. The Base Salary shall be reviewed annually by the Board during
the
first quarter of each fiscal year and shall be increased by such amount as
the
Board shall deem appropriate effective as of the first day of such fiscal year;
provided that such increase shall be in an amount of not less than the increase,
if any, in the Consumer Price Index as of the previous December 31 using the
December 31, 2007 as the base year. The Base Salary may not be decreased at
any
time during the Employment Period.
(b) Executive
Bonus Plan. Employee
shall be eligible to receive from Employer such management incentive bonuses
as
may be provided in management incentive bonus plans adopted from time to time
by
Employer or approved by the Board.
(c) Stock Options. Employee
shall participate in the stock compensation plan adopted by the Board to provide
management and employees with long-term stock-based compensation. The number
and
terms of any options or other stock compensation granted to Employee under
the
stock compensation plan shall be determined by the Board in its discretion.
(d) Vacation. Employee
shall be entitled time off in accordance with Employee’s vacation and absence
policy, as it may be modified from time to time during Employee’s employment
hereunder; provided that Employee will have no less than three (3) weeks of
paid
vacation during the Initial Term or any Extension Term of this Agreement. Any
time off not used within the Initial Term or any Extension Term shall be
accumulated and may be used during any subsequent Extension Term up to an
aggregate amount of five (5) weeks during any Extension Term.
(e) Group
Insurance Benefits. Employee
shall be entitled to participate in Employer’s group health, life and disability
programs as are made available to Employer’s other
executives and Employee’s participation in such programs shall be at the same
rates that are available to Employer’s other executives. Nothing herein shall be
deemed to require Employer to adopt and maintain a group health, life and
disability program or to limit or prohibit Employer’s right to amend or
terminate any group health, life or disability program adopted by
Employer.
(f) Savings
Plans. Employee
shall be entitled to participate in Employer’s 401(k) savings plan, profit
sharing plan, or other retirement or savings plans as are made available to
Employer’s other executives on the same terms that are available to Employer’s
other executives. Nothing herein shall be deemed to require Employer to adopt
and maintain a 401(k) savings plan or other retirement or savings plans or
to
limit or prohibit Employer’s right to amend or terminate any 401(k) savings plan
or other retirement or savings plans adopted by Employer.
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Section
5. Expenses. The
parties anticipate that in connection with the services to be performed by
Employee pursuant to the terms of this Agreement, Employee will be required
to
make payments for travel, entertainment of business associates and similar
expenses. Employer shall reimburse Employee for all appropriate and reasonable
expenses authorized by Employer and incurred by Employee in the performance
of
his duties hereunder. Employee shall comply with such budget limitations and
approval and reporting requirements with respect to expenses as Employer may
establish from time to time.
Section 6. Termination.
(a) General. Employee’s
employment hereunder shall commence on the Effective Date and continue until
the
end of the Employment Period, except that the employment of Employee hereunder
shall terminate prior to such time in accordance with the
following:
(i) Death
or Disability. Upon
the death of Employee during the Employment Period or, at the option of
Employer, in the event of Employee’s Disability, upon 30 days’ notice to
Employee. “Disability” with respect to Employee shall be deemed to exist if
Employee meets the definition of either “disabled” or “disability” under the
terms of Employer’s long-term disability benefit program (including the
definitions for total or partial disability) or if there is no such definition
or program, if Employee is unable to perform his obligations under this
Agreement for a period of 30 consecutive days or 60 days in any twelve month
period. Any refusal by Employee to submit to a reasonable medical examination
to
determine whether Employee is so disabled shall be deemed to constitute
conclusive evidence of Employee’s disability.
(ii) For
Cause. Immediately
upon written notice from Employer specifying that one or more of the following
events has occurred (except that Employee shall have 30 days after such notice
to cure or otherwise resolve the occurrence of the events set forth in
paragraphs 3, 4 or 5):
| (1) |
Employee
is convicted of fraud, bribery, embezzlement or other material dishonesty
with the respect to the business of Employer, or Employer discovers
that
Employee has been convicted of any such act in the past with respect
to a
previous employer; or
|
| (2) |
Employee
is convicted of a felony or any criminal act involving moral turpitude
or
Employer discovers that Employee has been convicted of any such act
in the
past; or
|
| (3) |
Employee
commits a material breach of any of the covenants, representations,
terms
or provisions hereof; or
|
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| (4) |
Employee
violates any material instructions or policies of Employer with respect
to
the operation of its business or affairs or Employee fails in a material
way to obey written directions delivered to Employee by the Board;
or
|
|
(5)
|
Employee
commits or omits to perform any act the performance of which, or
the
omission of which, constitutes substantial failure of Employee to
diligently and effectively perform his duties to Employer or has
a
material adverse effect or could materially adversely affect Employer’s
business reputation; or
|
|
(6)
|
Employee
uses illegal drugs.
|
(iii) By
Employee for Good Reason. Employee
may terminate his employment hereunder for Good Reason upon written notice
to
the Company setting forth the nature of such Good Reason in reasonable detail
(except that Employer shall have 15 days after such notice to cure or otherwise
resolve the occurrence of the events set forth in paragraphs 1, 2, 3). “Good
Reason” shall mean:
|
(1)
|
Employer
commits a material breach of any of the covenants, representations,
terms
or provisions hereof or fails to provide Employee the Base Salary
and
incentive compensation and benefits in accordance with the terms
of
Section 4 herein; or
|
|
(2)
|
any
material and adverse diminution in Employee’s duties or responsibilities
with Employer; or
|
|
(3)
|
any
relocation of Employee from San Antonio, Texas without Employee’s consent;
or
|
|
(4)
|
at
any time upon written notice by Employee to Employer within 12 months
after (A) a merger or consolidation of Employer with any person; or
(B) the sale, lease, or other disposition of all or substantially all
of Employer’s assets to any person; unless in each case, the board of
directors or other governing body of the surviving person or acquirer,
as
the case may be, is the same as the Board immediately before such
transaction; or
|
|
(5)
|
the
acquisition by any person of voting securities constituting 20% or
more of
the outstanding voting securities issued by Employer or the right
to
elect, by ownership of voting securities or otherwise, more than
33% of
the persons that make up the Board.
|
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(iv) Voluntary
Termination. Either
Party may voluntarily terminate the employment of Employee upon thirty (30)
days’ written notice to the other. Any such termination by Employer shall be
without Cause if the notice of termination fails to specify one of the reasons
set forth in Section 6(a)(ii) (or if any such reason is specified that may
be cured by Employee has been cured within the applicable cure period). Any
such
termination by Employee shall be without Good Reason if the notice of
termination fails to specify one of the reasons set forth in
Section 6(a)(iii) (or if any such reason is specified that may be cured by
Employer has been cured within the applicable cure period).
(b) Severance
Benefits.
(i) In
the
event that Employee’s employment hereunder is terminated as a result of
Employee’s death or disability pursuant to Section 6(a)(i), Employer shall
pay Employee (or his estate) a cash amount equal to Employee’s Base Salary for
the lesser of (A) the period prior to the commencement of benefits under
any death or disability insurance provided by Employer; or (B) the
remaining term of this Agreement or sixty (60) days from the date of such death
or disability, whichever is greater. In addition to the payment under the first
sentence of this subsection, Employer shall pay all unpaid expense
reimbursements under Section 5 for expenses incurred in accordance with the
terms hereof prior to termination and compensation and all accrued and unused
vacation time as of the date of termination.
(ii) In
the
event that Employee’s employment hereunder is terminated by Employer for Cause
pursuant to Section 6(a)(ii), Employee provides Employer notice that
Employee that the Agreement will not be renewed for any Extension Term, or
voluntarily by Employee pursuant to Section 6(a)(iv), Employer shall have
no obligation to make any payments to Employee except for payments of Employee’s
Base Salary accruing prior to the date of termination.
(iii) In
the
event that Employee’s employment hereunder is terminated by Employee for Good
Reason pursuant to Section 6(a)(iii), Employer provides Employee with
notice that the Agreement will not be renewed for any Extension Term, or
voluntarily by Employer pursuant to Section 6(a)(iv), Employer shall pay
Employee a cash amount equal to Employee’s Base Salary for a period of twelve
(12) months plus one (1) month for each year of employment by Employer;
(B) Employer shall continue coverage under Employer’s group health, life
and disability plan and contribute the Employer’s cost of such coverage for a
period of twelve (12) months plus one (1) month for each year of employment
by
Employer (or pay such amount to Employee as reimbursement for the costs of
continuing coverage under COBRA or obtaining comparable independent coverage);
and (C) all options, grants, or other rights issued to Employee under
Employer’s Stock Compensation Plan, incentive compensation plan, or other
benefit plans shall immediately vest and be exercisable for the lesser of twelve
(12) months plus one (1) month for each year of employment by Employer or the
remaining term of such rights, whichever is less. For the purposes of this
paragraph 6(b)(iii), Employee will be deemed to have been employed by Employer
on December 16, 1993.
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Section 7. Inventions;
Assignment.
(a) Inventions
Defined. All
rights to discoveries, inventions, improvements, designs and innovations
(including all data and records pertaining thereto) that relate to the business
of Employer, including its Affiliates, whether or not able to be patented,
copyrighted or reduced to writing, that Employee may discover, invent or
originate during the term of his employment hereunder, and for a period of
six
(6) months thereafter, either alone or with others and whether or not during
working hours or by the use of the facilities of Employer (“Inventions”),
shall
be the exclusive property of Employer. Employee shall promptly disclose all
Inventions to Employer, shall execute at the request of Employer any assignments
or other documents Employer may deem necessary to protect or perfect its rights
therein, and shall assist Employer, at Employer’s expense, in obtaining,
defending and enforcing Employer’s rights therein. Employee hereby appoints
Employer as his attorney-in-fact to execute on his behalf any assignments or
other documents deemed necessary by Employer to protect or perfect its rights
to
any Inventions.
(b) Covenant
to Assign and Cooperate. Without
limiting the generality of the foregoing, Employee shall assign and transfer
to
Employer the worldwide right, title and interest of Employee in the Inventions.
Employee agrees that Employer may apply for and receive patent rights (including
Letters Patent in the United States) for the Inventions in Employer’s name in
such countries as may be determined solely by Employer. Employee shall
communicate to Employer all facts known to Employee relating to the Inventions
and shall cooperate with Employer’s reasonable requests in connection with
vesting title to the Inventions and related patents exclusively in Employer
and
in connection with obtaining, maintaining and protecting Employer’s exclusive
patent rights in the Inventions.
(c) Successors
and Assigns. Employee’s
obligations under this Section 7 shall inure to the benefit of Employer, its
Affiliates and their respective successors and assigns and shall survive the
expiration of the term of this Agreement for such time as may be necessary
to
protect the proprietary rights of Employer and its Affiliates in the
Inventions.
Section
8. Confidential
Information.
(a) Acknowledgment
of Proprietary Interest. Employee
acknowledges the proprietary interest of Employer and its Affiliates in all
Confidential Information (as defined below). Employee agrees that all
Confidential Information learned by Employee during his employment with Employer
or otherwise, whether developed by Employee alone or in conjunction with others
or otherwise, is and shall remain the exclusive property of Employer. Employee
further acknowledges and agrees that his disclosure of any Confidential
Information will result in irreparable injury and damage to
Employer.
(b) Confidential
Information Defined. “Confidential
Information” means all trade secrets, copyrightable works, confidential or
proprietary information of Employer or its Affiliates, including without
limitation, (i) information derived from reports, investigations,
experiments, research and work in progress, (ii) methods of operation,
(iii) market data, (iv) proprietary computer programs and codes,
(v) drawings, designs, plans and proposals, (vi) marketing and sales
programs, (vii) the identities of clients or customers,
(viii) historical financial information and financial projections,
(ix) pricing formulae and policies, (x) all other concepts, ideas,
materials and information prepared or performed for or by Employer and
(xi) all information related to the business, services, products, purchases
or sales of Employer or any of its suppliers and customers, other than
information that is publicly available.
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(c) Covenant
Not To Divulge Confidential Information. Employer
is entitled to prevent the disclosure of Confidential Information. As a portion
of the consideration for the employment of Employee and for the compensation
being paid to Employee by Employer, Employee agrees to hold in strict confidence
and not to disclose or allow to be disclosed to any person, firm or corporation,
other than to persons engaged by Employer to further the business of Employer,
and not to use except in the pursuit of the business of Employer, the
Confidential Information, without the prior written consent of
Employer.
(d) Return
of Materials at Termination. In
the event of any termination or cessation of his employment with Employer for
any reason, Employee shall promptly deliver to Employer all documents, data
and
other information derived from or otherwise pertaining to Confidential
Information. Employee shall not take or retain any documents or other
information, or any reproduction or excerpt thereof, containing or pertaining
to
any Confidential Information.
Section 9. Non-Solicitation.
(a) Solicitation
of Employees. During
Employee’s employment with Employer and for a period equal to the greater of
(i) six (6) months after termination of such employment at any time and for
any reason, or (ii) the term of any severance benefits payable under
Section 6 hereof, Employee shall not solicit, participate in or promote the
solicitation of any person who was employed by Employer or any of its Affiliates
at the time of Employee’s termination of employment with Employer to leave the
employ of Employer or any of its Affiliates, or, on behalf of himself or any
other person, hire, employ or engage any such person. Employee further agrees
that, during such time, if an employee of Employer or any of its Affiliates
contacts Employee about prospective employment, Employee will inform such
employee that he or she cannot discuss the matter further without the consent
of
Employer (and the applicable affiliate).
(b) Solicitation
of Clients, Customers, Etc. During
Employee’s employment with Employer and for a period of six (6) months after
termination of Employee’s employment at any time and for any reason, Employee
shall not, directly or indirectly, solicit any person who either during any
portion of the time of Employee’s employment or at the time of termination of
Employee’s employment with Employer, was a client, customer, policyholder,
vendor, consultant or agent of Employer or its Affiliates to discontinue
business, in whole or in part, with Employer or its Affiliates. Employee further
agrees that, during such time, if such a client, customer, policyholder, vendor,
or consultant or agent contacts Employee about discontinuing business with
Employer or moving that business elsewhere, Employee will inform such client,
customer, policyholder, vendor, consultant or agent that he or she cannot
discuss the matter further without the consent of Employer (and the applicable
affiliate).
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Section
10. Non-Compete. Employer
agrees to disclose to Employee and Employee agrees to receive from Employer
Confidential Information (as set forth above) which would provide competitors
of
Employer with an unfair advantage. In consideration for such disclosure by
Employer, Employee agrees as follows:
(a) Competition
During Employment. Employee
agrees that during the term of his employment with Employer, neither he nor
any
of his Affiliates (Employee’s Affiliates is defined as any legal entity in which
Employee owns, controls, holds a financial interest in or is the beneficiary
of)
will directly or indirectly compete with Employer or its Affiliates in any
way
in any business in which Employer or its Affiliates is engaged or intends to
engage, and that he will not act as an officer, director, employee, consultant,
shareholder, lender, or agent of any entity which is engaged in any business
of
the same nature as, or in competition with, the businesses in which Employer
and
its Affiliates are now engaged or in which Employer or its Affiliates become
engaged during the term of employment; provided, however, that this
Section 10(a) shall not prohibit Employee or any of his Affiliates from
purchasing or holding an aggregate equity interest of up to 10% in any publicly
traded business in competition with Employer and its Affiliates, so long as
Employee and his Affiliates combined do not purchase or hold an aggregate equity
interest of more than 10%. Furthermore, Employee agrees that during the term
of
employment, he will not accept any board of director seat or undertake any
planning for the organization of any business activity competitive with Employer
and Employee will not combine or conspire with any other employees of Employer
and its Affiliates for the purpose of the organization of any such competitive
business activity.
(b) Competition
Following Employment. In
order to protect Employer against the unauthorized use or the disclosure of
any
Confidential Information of Employer and its Affiliates presently known or
hereinafter obtained by Employee during his employment under this Agreement,
Employee agrees that for a period equal to the greater of (i) six (6)
months after the termination or cessation of his employment with Employer at
any
time and for any reason, other than cessation of his employment caused by
Employer’s filing for reorganization under the bankruptcy laws of the United
States, and regardless of whether any payments are made to Employee under this
Agreement as a result of such termination, or (ii) the period for which any
severance benefits are payable under Section 6 hereof, neither Employee nor
any of his Affiliates, shall, directly or indirectly, for itself or himself
or
on behalf of any other corporation, person, firm, partnership, association,
or
any other entity (whether as an individual, agent, servant, employee, employer,
officer, director, shareholder, investor, principal, consultant or in any other
capacity):
(i) engage
or
participate in any business which engages in competition with such businesses
being conducted by Employer or any of its Affiliates during the term of
employment anywhere in any state in the United States or in any foreign country
where Employer or any of its Affiliates is engaged; or
(ii) assist
or
finance any person or entity in any manner or in any way inconsistent with
the
intents and purposes of this Agreement.
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Section
11. General.
(a) Notices. All
notices and other communications hereunder shall be in writing or by written
telecommunication, and shall be deemed to have been duly given if delivered
personally or if mailed by certified mail, return receipt requested or by
written telecommunication, to the relevant address set forth below, or to such
other address as the recipient of such notice or communication shall have
specified to the other party in accordance with this Section 11(a):
If
to
Employer, to:
ATSI
Communications, Inc.
0000
Xxxxxx Xxxxx, Xxxxx X000
Xxx
Xxxxxxx, Xxxxx, 00000
Attention:
President
If
to
Employee, to Employee’s last known address appearing on Employer’s
records.
(b) Withholding. All
payments required to be made to Employee by Employer under this Agreement shall
be subject to the withholding of such amounts, if any, relating to federal,
state and local taxes as may be required by law and such amounts, if any, as
Employee shall authorize in connection with benefit plans in which Employee
is a
participant.
(c) Equitable
Remedies. Each
of the parties hereto acknowledges and agrees that upon any breach by Employee
of his obligations under any of Sections 7, 8, 9, and 10 Employer shall suffer
immediate, great and irreparable injury and shall have no adequate remedy at
law. Accordingly, in event of such breach or threatened breach, Employer shall
be entitled, in addition to other remedies and without showing actual damages,
to specific performance and other appropriate injunctive and equitable relief.
Employer shall not be obligated to provide a bond for any such
injunction.
(d) Severability. If
any provision of this Agreement is held to be illegal, invalid or unenforceable,
such provision shall be modified as to duration or geography to the minimum
extent necessary to make it legal, valid and enforceable and as so modified
enforced. If any such provision cannot be modified to be made legal, valid
and
enforceable, such provisions shall be fully severable, and this Agreement shall
be construed and enforced as if such illegal, invalid or unenforceable provision
never comprised a part hereof, and the remaining provisions hereof shall remain
in full force and effect and shall not be affected by the illegal, invalid
or
unenforceable provision or by its severance. Furthermore, in lieu of such
illegal, invalid or unenforceable provision, there shall be added automatically
as part of this Agreement a provision as similar in its terms to such illegal,
invalid or unenforceable provision as may be possible and be legal, valid and
enforceable.
(e) Effect
on Other Agreements. This
Agreement modifies and amends, to the extent necessary to give effect to the
provisions hereof, any Stock Option Agreement, Stock Grant, or other contract
relating to the issuance of benefits under Employer’s benefit
plans.
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(f) Waivers. No
delay or omission by either party in exercising any right, power or privilege
hereunder shall impair such right, power or privilege, nor shall any single
or
partial exercise of any such right, power or privilege preclude any further
exercise thereof or the exercise of any other right, power or
privilege.
(g) Counterparts. This
Agreement may be executed in multiple counterparts, each of which shall be
deemed an original, and all of which together shall constitute one and the
same
instrument.
(h) Captions. The
captions in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect any of the terms or provisions hereof.
(i) Interpretation
of Agreement. This
Agreement shall be construed according to its fair meaning and not for or
against either party. The Parties have each been represented by counsel (or
advised of their right to be represented by counsel and waived such right)
and
have participated in the drafting of this Agreement. No rule of construction
or
interpretation shall be applied that construes any provision against a Party
because it was drafted by such Party. Use of the words “herein,” “hereof,”
“hereto,” “hereunder” and the like in this Agreement refer to this Agreement
only as a whole and not to any particular section or subsection of this
Agreement, unless otherwise noted. The masculine gender shall be deemed to
denote the feminine or neuter genders, the singular to denote the plural, and
the plural to denote the singular, where the context so permits.
(j) Binding
Agreement;
Assignment. This
Agreement shall be binding upon and inure to the benefit of the parties and
shall be enforceable by the personal representatives and heirs of Employee
and
the successors and assigns of Employer. The Affiliates of Employer shall be
considered third party beneficiaries of this Agreement with respect to any
services provided by Employee to them and in connection with Employee’s
covenants in Sections 7, 8, 9 and 10 hereof. Employer may assign this Agreement
to any person. If Employee dies while any amounts would still be payable to
him
hereunder, such amounts shall be paid to Employee’s estate. This Agreement is
not otherwise assignable by Employee.
(k) Entire
Agreement. This
Agreement contains the entire understanding of the parties, supersedes all
prior
agreements and understandings relating to the subject matter hereof and may
not
be amended except by a written instrument hereafter signed by each of the
parties hereto.
(l) Governing
Law. This
Agreement and the performance hereof shall be construed and governed in
accordance with the laws of the State of Texas, without regard to its choice
of
law principles.
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(m) Arbitration. Without
limiting Employer’s right to seek equitable remedies under Section 11(c)
above, Employer and Employee agree that any dispute or controversy arising
under
or in connection with this Agreement shall be settled first by attendance at
a
mandatory mediation process and, if not resolved by mediation, by arbitration.
If the parties are unable to agree on a mediator, either party may petition
a
Bexar County state district court judge for assistance in selecting a mediator.
Arbitration under this Agreement shall be governed by the Federal Arbitration
Act and proceed in San Antonio, Texas in accordance with the rules of the
American Arbitration Association (“AAA”).
Arbitration will be conducted before a panel of three neutral arbitrators
selected from an AAA list of proposed arbitrators with business law experience.
Either party may take any legal action needed to protect any right pending
completion of the arbitration. The arbitrator will determine whether an issue
is
arbitrate able and will give effect to applicable statutes of limitation. The
arbitrator has the discretion to decide, upon documents only or with a hearing,
any motion to dismiss for failure to state a claim or any motion for summary
judgment. Discovery shall be governed by the Federal Rules of Civil Procedure
and the Federal Rules of Evidence. All information developed by the arbitration
or litigation shall be held in confidence subject to such protective orders
as
the arbitrator deems useful to ensure complete confidentiality. The decision
of
the arbitrator shall be final and binding on all parties to this Agreement,
and
judgment thereon may be entered in any court having jurisdiction over the
parties. The party against whom the arbitrator decides shall pay all costs
of
the arbitration proceeding or litigation to enforce the arbitration
award.
(n) Employee
Representations. Employee
represents and certifies to Employer that he: (i) has received a copy of
this Agreement for review and study and has had ample time to review it before
signing; (ii) has read this Agreement carefully; (iii) has been given
a fair opportunity to discuss and negotiate the terms of this Agreement;
(iv) understands its provisions; (v) has had the opportunity to
consult his attorney; (vi) has determined that it is in his best interest
to enter into his Agreement; (vii) has not been influenced to sign this
Agreement by any statement or representation by Employer or its counsel not
contained in this Agreement; and (viii) enters into this Agreement
knowingly and voluntarily.
EXECUTED
as of the date and year first above written.
| EMPLOYER: | ||
| ATSI Communications, Inc. | ||
| |
|
|
| By: | /s/ Xxxx Xxxxxxx | |
| Name: Xxxx Xxxxxxx | ||
| Title: Interim Chairman | ||
| EMPLOYEE: | ||
| /s/ Xxxxxx X. Xxxxx | ||
| Xxxxxx X. Xxxxx | ||
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