EXHIBIT 10.1
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "AGREEMENT") is made and entered into
effective as of this 15th day of May, 2004 by and between U.S. REALTEL, INC. a
Delaware corporation (the "COMPANY" or "USRT" or "CYPRESS"), and Xxxxxxxxx X.
Xxxxxxx, a Georgia resident (the "EXECUTIVE" or "EMPLOYEE").
WHEREAS, the Company desires to employ the Executive and to obtain the
services of the Executive to act as the Executive Vice President, Field &
Network Operations of USRT, or other executive officer position as assigned by
the Company, and the Executive desires to accept such employment and to perform
such services all pursuant to the terms and conditions hereof.
NOW, THEREFORE, for and in consideration of such employment of the
Executive by the Company, the above premises, the mutual covenants hereinafter
set forth, and other good and valuable consideration, the receipt and legal
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. EMPLOYMENT. The Company hereby employs the Executive, and the Executive
hereby accepts such employment, pursuant and subject to the terms and conditions
hereinafter set forth.
2. SERVICES. At all times during the Term (as hereinafter defined), the
Executive shall perform for and on behalf of the Company the services and duties
as Executive Vice President, Field and Network Operations of Cypress and USRT,
and/or such other specific services and duties that may be assigned to him from
time to time by the Board of Directors of the Company ("BOARD") or its' duly
authorized designee(s) (collectively, the "SERVICES"). At all times during the
Term, the Executive shall (i) devote his full and exclusive business time,
energy and skill to the business of the Company and Cypress, and to the
fulfillment of his obligations under this Agreement, to the exclusion of all
other business activities, other than the management of his own passive
investments, (ii) to the best of his abilities, perform and discharge the
Services faithfully, diligently and in a timely manner, (iii) comply with all
lawful requests, instructions and regulations made by the Board, (iv) faithfully
serve the Company and Cypress to the best of his ability, and (v) use his best
efforts to promote the interests of the Company and Cypress.
3. COMPENSATION. During the Term of this Agreement, as compensation for
the proper and satisfactory performance of the Services to be performed by
Executive, the Company shall pay to Executive an annualized base salary of Two
Hundred Twenty Thousand Dollars ($220,000.00) (the "BASE SALARY"), payable in
installments twice per month, less deductions for withholding taxes and other
required statutory and authorized deductions.
3.1 USRT STOCK OPTIONS. Upon the execution of this Agreement,
Executive will be granted options under the Company's 1999 Employee Equity
Incentive Plan (the "PLAN"), subject to the terms and conditions of the Plan,
the particular terms be evidenced by the award agreement between USRT and the
Executive which will include 100,000 shares of USRT common stock with a strike
price of $1.25, or Fair Market Value, whichever is greater.
3.2 ADDITIONAL COMPENSATION. Beginning in FY2004, the Executive may
also participate in any bonus, incentive, profit-sharing, performance,
discretionary pay or similar agreement, plan, policy, program or arrangement
(whether or not funded) adopted by the Company's Board of Directors.
4. EMPLOYMENT BENEFITS. In addition to the above-described compensation,
in consideration of the Services, during the Term, the Company shall provide the
Executive, and the Executive shall be entitled to, such fringe benefits as may
be approved by the Board and established by the Company from time to time for
the benefit of its senior executive employees generally, including the
following:
4.1 PAID VACATION. During the Term, the Executive shall be entitled
to receive fifteen (15) paid vacation days.
4.2 INSURANCE BENEFITS. The Executive shall be provided such major
medical, life, worker's compensation, disability and other insurance coverage as
the Company may make available to its employees from time to time, subject to
applicable law and the respective terms and conditions of such coverages,
including, without limitation, applicable qualification and eligibility
requirements and limitations. Company shall also cover Executive under its
officers' and directors' liability coverage at such levels as the Company may
provide for its officers and directors from time to time. Executive shall also
enjoy such indemnification protections as provided under the Company's By-Laws,
as may be amended from time to time and as provided by the laws of the state of
the Company's Articles of Incorporation, currently the State of Delaware.
4.3 BENEFIT PLANS. The Executive shall be entitled to participate in
those deferred compensation, retirement and employee welfare benefit plans
adopted or sponsored by the Company from time to time and made available to the
Company's employees, subject to applicable law and the respective terms and
conditions thereof, including, without limitation, applicable participation
limitations.
4.4 EXPENSES. During the Term, the company shall reimburse the
Executive for all reasonable, actual and direct expenses incurred by the
Executive in connection with his performance of the Services, provided such
expenses are properly characterized as being business expenses that are properly
tax deductible for the Company, and further provided that such expenses were
incurred by the Executive only in accordance with the policies and procedures
established by the Company from time to time, or otherwise were of the types
authorized in advance by the Board. The Executive shall comply with the
limitations and reporting requirements with respect to such expenses that the
Board may establish from time to time, including, without limitation, the timely
submission to the Company of written documentation of such expenses in a form
complying with the records required of the Company by the Internal Revenue
Service and appropriate state authorities for tax deductibility purposes.
4.5 HANDBOOK, POLICIES AND PROCEDURES. The Executive acknowledges
that the Company may promulgate employee handbooks, policies and procedures from
time to time, and the Executive agrees to adhere to the terms of any and all
such handbooks, policies and procedures. The Company reserves the right, in its
sole discretion, to modify, amend,
2
discontinue or repeal any such handbook, policy or procedure. To the extent any
conflict in terms between this Agreement and any such other handbooks, policies
or procedures should arise, the terms of this Agreement shall control.
4.6 MODIFICATIONS. To the extent permitted by applicable law, the
Company reserves the sole right and discretion to modify, amend, discontinue or
repeal, at any time, any of the benefits described in this Section 4 or
otherwise established by the Company.
5. WITHHOLDING. All compensation and other amounts, if any, payable to the
Executive pursuant to the terms and conditions of this Agreement are stated in
gross amounts and shall be subject to all applicable withholding taxes, other
normal payroll deductions and any other amounts required by any law, rule or
regulation to be withheld.
6. TERM. The initial term of the Executive's employment with the Company
hereunder (the "TERM") shall commence as of the effective date hereof and shall
continue for a period of one (1) year. This Agreement will continue thereafter
from year to year, unless and until earlier terminated pursuant to, and in
accordance with, Section 7 or Section 8, hereof.
7. TERMINATION OF EMPLOYMENT.
7.1 DEATH. In the event of the death of the Executive at any time
during the Term, his employment hereunder shall automatically terminate, which
termination shall be effective as of the end of the day on the date on which his
death occurs.
7.2 DISABILITY. In the event of the Total Disability (as hereinafter
defined) of the Executive at any time during the Term, his employment hereunder
shall automatically terminate, which termination shall be effective as of the
end of the day on the date on which his Total Disability occurs for all purposes
of compensation, except that to the extent required to obtain the benefits of
Company's disability insurance, Executive shall continue to be treated as an
employee on a leave of absence. For purposes of this Agreement, the Executive
shall be deemed to have a "TOTAL DISABILITY" if he shall be unable, by reason of
illness or physical or mental incapacity or disability (from any cause or causes
whatsoever) (each a "DISABILITY"), to perform his essential job functions
required by this Agreement, whether with or without reasonable accommodation by
the Company, in substantially the manner and to the extent required by this
Agreement immediately prior to the occurrence of such Disability, for a period
of ninety (90) consecutive days, and such Total Disability shall be deemed to
have occurred on the first day immediately after such period. In the event of
any disagreement between the Executive and the Company about whether he has a
Disability or Total Disability, the question shall be submitted to an impartial
and reputable physician selected by the Company and the Executive. The
determination of the question of such Disability or Total Disability by such
physician shall be final and binding on the Executive and the Company for
purposes of this Agreement. The Company shall pay the reasonable fees and
expenses of such determining physician. For purposes of determining whether a
Disability continued for ninety (90) consecutive days, if the Executive shall
have suffered a Disability and shall have returned to work after the end of such
Disability, any Disability commencing within sixty (60) days after the
termination of the prior Disability shall be deemed to be a continuation of the
prior Disability, and the periods of all such Disabilities shall be added as if
they fell on consecutive days.
3
7.3 TERMINATION BY THE COMPANY FOR CAUSE. The Executive's employment
hereunder may be terminated by the Company for Cause (as hereinafter defined)
immediately upon written notice by the Company to Executive. For purposes of
this Agreement, "CAUSE" for termination shall mean only the following:
(a) the Executive's criminal indictment for a felony or any crime
involving moral turpitude;
(b) Acts of the Executive which constitute willful fraud on the part
of Executive in connection with his duties under this Agreement,
including, but not limited to, misappropriation or embezzlement in the
performance of his duties as an employee of the Company; making false,
fraudulent or inappropriate statements about the Company, its employees or
products; engaging in any unethical, immoral or unprofessional conduct;
falsifying or misrepresenting any information to Company; or Executive's
engaging in conduct materially injurious to the Company and in violation
of any covenant, promise, representation or warranty of this Agreement or
any fiduciary or other obligation owed by the Executive to the Company,
including, without limitation, the obligation to refrain from engaging in
the activities prohibited by Sections 8 and 9 hereof; or
(c) Gross misconduct, including, but not limited to, the willful
failure of the Executive either to (i) continue to obey lawful written
instructions of the Board of Directors of the Company (that do not involve
matters which, if obeyed by the Executive, would permit the Executive to
terminate his employment for "GOOD REASON," as defined in subsection 7.5
hereof) after receiving thirty (30) days notice in writing of the
Employee's failure to do so and the Company's intention to terminate the
Executive if such failure is not corrected, or (ii) correct any conduct of
the Executive which constitutes a material breach of this Agreement after
receiving thirty (30) days notice in writing of the Executive's failure to
do so and the Company's intention to terminate Executive if such failure
is not corrected. This cure right may be exercised on only one occasion
during each calendar year of the Term.
7.4 TERMINATION BY THE COMPANY WITHOUT CAUSE. The Executive's
employment hereunder may be terminated by the Company for any reason, or for no
reason whatsoever, by giving notice of such termination (the "COMPANY'S NOTICE")
to the Executive, which termination shall be effective as of the end of the day
on the later of (i) the thirtieth (30th) day after the Executive's receipt of
the Company's Notice, or (ii) such later date, if any, specified by the Company
therein, subject to the last sentence of this subsection 7.4. Company's failure
to extend the term of this Agreement at the end of the term hereof shall
constitute termination under this subsection 7.4 without the need for any notice
on the part of the Company. Until the effective date of such termination
(without giving effect to the last sentence of this subsection 7.4), the
Executive shall be obligated to continue to perform the Services at all times;
provided, however, the Company reserves the right, exercisable by giving notice
to the Executive (within the Company's Notice or otherwise), to require the
Executive to cease performing the Services at any time on or after delivery of
the Company's Notice to the Executive. In the event that, prior to the effective
date of termination set forth above in this subsection 7.4, the Executive ceases
performing the Services, other than at the Company's request (as described
above), then
4
such termination shall be deemed effective as of the end of the day on the date
that the Executive ceases performing the Services.
7.5 TERMINATION BY THE EXECUTIVE. The Executive's employment
hereunder may be terminated by the Executive for any reason, or for no reason
whatsoever, by giving notice of such termination (the "EXECUTIVE'S NOTICE") to
the Company, which termination shall be effective as of the end of the day on
the later of (i) the thirtieth (30th) day after the Company's receipt of the
Executive's Notice, or (ii) such later date, if any, specified by the Executive
therein, unless such effective date is accelerated (1) by the Company as
provided below or (2) pursuant to the third sentence of this subsection 7.5.
Until the effective date of such termination (without giving effect to the third
sentence of this subsection 7.5), the Executive shall be obligated to continue
to perform the Services at all times; provided, however, the Company reserves
the right, exercisable by giving notice to the Executive, to accelerate the
effective date of termination pursuant to this subsection 7.5 to any date on or
after the thirtieth (30th) day after the Company's receipt of the Executive's
Notice. In the event that, prior to the effective date of termination set forth
above in this subsection 7.5, the Executive ceases performing the Services,
other than as a result of the Company's acceleration of the effective date (as
described above), then such termination shall be deemed effective as of the end
of the day on the date that the Executive ceases performing the Services. If the
Executive terminates his employment, as provided above and states in his notice
of termination Good Reason for the termination, then such termination shall he
effective immediately. For purposes hereof, "GOOD REASON" shall mean the
occurrence of any of the following (i) breach of this Agreement by the Company;
(ii) insolvency of the Company; (iii) a reduction by the Company in the
Executive's annual base salary as then in effect; (iv) a new Company requirement
is instituted which requires the Executive to change his work location to a
location greater than fifty (50) miles from Executive's work location
immediately prior to the institution of the requirement; but not including a
requirement that the Executive travel on the Company's business to an extent
substantially consistent with his present business travel obligations, or (v)
The failure by the Company, without the Executive's consent, to pay to the
Executive any portion of his compensation, or to pay to the Executive any
portion of an installment of deferred compensation under any deferred
compensation program of the Company within seven (7) days of the date such
compensation is due, unless such failure to pay is reasonably in dispute by the
Company.
The Executive's right to terminate his employment pursuant to this subsection
shall not be affected by his incapacity due to physical or mental illness. The
Executive's continued employment shall not constitute consent to, or a waiver of
rights with respect to, any circumstance constituting Good Reason hereunder.
7.6 EFFECT OF TERMINATION OF EMPLOYMENT.
(a) Upon the effective date of termination of the Executive's
employment hereunder for any reason, the Executive shall be deemed to have
automatically resigned from any and all directorships, offices or other
positions (fiduciary or otherwise) that the Executive may then hold in
connection with the Company or Cypress or in connection with any employee
welfare benefit plan sponsored by the Company, which resignation shall be
deemed effective without the requirement that a written resignation be
delivered by the Executive. Further, upon the effective date of
termination of the Executive's
5
employment hereunder for any reason, all debts, obligations and
liabilities (whether or not contingent) of the Executive to the Company
shall be immediately due and payable to the Company and may be offset, at
the Company's sole option, against any amounts due and owing by the
Company to the Executive. From and after the effective date of the
termination of the Executive's employment hereunder for any reason, the
Executive shall not at any time represent himself still to be connected,
or to have any connection, with the Company or Cypress.
(b) If the Company terminates the Executive's employment without
Cause pursuant to subsections 7.1, 7.2 or 7.4 or if the Executive
terminates his employment for Good Reason pursuant to subsection 7.5
hereof, the Company (i) shall continue to pay to the Executive the
Executive's then current base salary with the Company, in accordance with
the Company's payroll policies, for a period of six (6) months following
the date of termination, and (ii) shall provide Executive with benefits
coverage, including, without limitation, coverage under medical, dental
and vision, but excluding disability plans for a period of six (6) months
following the date of termination. If the Company terminates the
Executive's employment without Cause pursuant to subsections 7.1, 7.2 or
if the Executive terminates his employment for Good Reason pursuant to
subsection 7.5 hereof, the Company shall accelerate Executive's stock
options, if any, subject to any deductions or offsets described in this
Agreement. Except as provided in the immediately preceding two sentences,
from and after the effective date of the termination of the Executive's
employment hereunder, the Company shall not have any further obligations
under this Agreement or otherwise with respect to the Executive or his
employment hereunder, except for the Company's obligation to pay to the
Executive (or the estate of the Executive in the event of termination
pursuant to subsection 7.1 hereof) all earned and accrued but unpaid
salary through the effective date of termination of the Executive's
employment hereunder, subject to any deductions or offsets described in
this Agreement.
(c) Notwithstanding the foregoing, the Company shall continue to
have all rights available to the Company under this Agreement, including,
without limitation, all rights under Sections 8, 9, 10 and 11 hereof, at
law or in equity, and the provisions of this Agreement shall survive the
termination of the Executive's employment hereunder to the extent required
to give full effect to the covenants and agreements contained herein.
8. TERMINATION UPON A CHANGE IN CONTROL.
8.1 CHANGE OF CONTROL. For purposes of this Agreement, a "CHANGE IN
CONTROL" shall mean (a) the time that any person and all other persons who
constitute a group (within the meaning of Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT")), have acquired within any
12 month period (i) direct or indirect beneficial ownership (within the meaning
of Section 13(d)(3) under the Exchange Act) of 51% or more of the Company's
outstanding securities or (ii) assets of the Company having a fair market value
in excess of one-third of the Company's total assets, (b) the first day on which
a majority of the members of the Company's Board are not continuing directors,
or (c) upon the occurrence of a merger, consolidation, acquisition of property
or stock, separation, reorganization or liquidation of the Company, as a result
of which the stockholders of the Company receive cash, stock or other property
in exchange for their shores of Company stock (but not a public offering of
stock
6
by the Company), and the Company is not the surviving entity. However, these
Change in Control provisions shall not become effective if a technical Change in
Control is met purely due to the Company's financing activities.
8.2 EFFECT OF CHANGE IN CONTROL. In the event of Employee's
termination of employment coincident with a Change in Control, whether at
Employee's direction or otherwise, Employee shall immediately be paid all
accrued salary, bonus compensation to the extent earned, vested deferred
compensation (other than plan benefits which will be paid in accordance with the
applicable plan), any benefits under any plans of the Company in which Employee
is a participant to the full extent of Employee's rights under such plans
(including accelerated vesting of any awards granted to Employee under the
Company's stock incentive plans, which shall provide for accelerated vesting),
accrued vacation pay and any appropriate business expenses incurred by Employee
in connection with his duties hereunder, all to the date of termination. The
Company (i) shall continue to pay to the Executive the Executive's then current
salary with the Company, in accordance with the Company's payroll policies, for
a period of six (6) months following the date of termination, (ii) shall provide
Executive with benefits coverage, including, without limitation, coverage under
medical, dental and vision, but excluding disability plans for a period of six
(6) months following the date of termination and (iii) shall accelerate one
hundred percent (100%) of the Executive's stock options, if any, subject to any
deductions or offsets described in this Agreement. If Executive's employment is
terminated prior to the date an which a Change in Control event occurs, and such
termination was at the request of a third party who has taken steps to effect a
Change in Control event or was otherwise caused by the Change in Control event,
then for all purposes of this Agreement, a Change in Control event shall be
deemed to have occurred prior to such termination.
9. PROPRIETARY INFORMATION.
9.1 NONDISCLOSURE.
(a) The Executive acknowledges that, in performing the Services, the
Executive will be making use of, acquiring and adding to the confidential
and proprietary information of the Company and/or those persons or
entities directly or indirectly controlling or controlled by, or under
direct or indirect common control with, the Company (each an "AFFILIATE"
and collectively, the "AFFILIATES"), which (i) is of a special and unique
nature and value, (ii) is not public information or is not generally known
or available to the Company's and/or the Affiliates' competitors, (iii) is
known only by the Company and/or the Affiliates and those of their
respective Executives, independent contractors, consultants, suppliers,
customers or agents to whom such data and information must be confided in
order to apply it to the uses intended, and (iv) relates to matters such
as, but not limited to, the Company's and the Affiliates' respective
methods of operation, internal structure, financial affairs, programs,
software, equipment and techniques, existing and contemplated facilities,
products and services, know-how, inventions, systems, devices (whether or
not patentable), methods, ideas, procedures, manuals, confidential studies
and reports, lists of suppliers and customers and prospective suppliers
and customers, financial information and practices, plans, pricing,
selling techniques, sales and marketing programs and methods, names,
addresses and telephone numbers of the Company's and/or the Affiliates'
suppliers and customers, credit and
7
financial data of the Company's and/or the Affiliates' suppliers and
customers, particular business requirements of the Company's and/or the
Affiliates' suppliers and customers, special methods and processes
involved in designing, producing and selling the Company's and/or the
Affiliates' products and services, any other information related to the
Company's and/or the Affiliates' suppliers and customers that could be
used as a competitive advantage by the Company's and/or the Affiliates'
competitors if revealed or disclosed to such competitors or to persons or
entities revealing or disclosing same to such competitors, and all "trade
secrets" (as that term is defined in O.C.G.A.Section 10-1-761, as amended)
of the Company and/or the Affiliates, all of which, together with any and
all extracts, summaries and photo, electronic or other copies or
reproductions, in whole or in part thereof, stored in whatever medium
(including electronic or magnetic), shall be deemed the Company's and/or
the Affiliates' exclusive property, as applicable, and shall be deemed to
be "CONFIDENTIAL INFORMATION." The Executive acknowledges that the
Confidential Information has been and will continue to be of central
importance to the business of the Company and the Affiliates, and that
disclosure of it to, or its use by, others could cause substantial loss to
the Company and the Affiliates. In consideration of the Executive's
employment hereunder, the Executive agrees that, at all times during the
Term, and (i) with respect to all Confidential Information constituting
"trade secrets", for so long thereafter as such Confidential Information
continues to constitute "trade secrets" (or for the period beginning on
the last day of the Term and ending two (2) years thereafter, whichever is
longer); and (ii) with respect to all Confidential Information not
constituting "trade secrets", for the period beginning on the last day of
the Term and ending two (2) years thereafter, the Executive shall not,
directly or indirectly, use, divulge or disclose to any person or entity,
other than those persons or entities employed or engaged by the Company
who or which are authorized to receive such information, any of such
Confidential Information, and the Executive shall hold all of the
Confidential Information confidential and inviolate and will not use such
Confidential information against the best interests of the Company or any
of the Affiliates.
9.2 RETURN OF RECORDS. The Executive acknowledges and agrees that
all supplier, customer, employee and contractor files, contracts, agreements,
financial books, records, instruments and documents, supplier and customer
lists, memoranda, data, reports, sales documentation and literature, software,
rolodexes, telephone and address books, letters, research, listings, and any
other instruments, records or documents relating or pertaining to (i) the
customers or suppliers of the Company and/or any of the Affiliates serviced by
or serving the Company, any of the Affiliates or the Executive, (ii) the duties
performed hereunder by the Executive, or (iii) the business of the Company
and/or any of the Affiliates (collectively, the "RECORDS") shall at all times be
and remain the exclusive property of the Company and/or the Affiliates, as
applicable. Upon termination of the Executive's employment hereunder for any
reason whatsoever, the Executive shall promptly return to the Company all
Records (whether furnished by the Company or any of the Affiliates or prepared
by the Executive), and the Executive shall neither make nor retain, nor allow
any third party to make or retain, any photo, electronic or other copy or other
reproduction of any of such Records after such termination.
9.3 ASSIGNMENT OF INVENTIONS AND WORKS MADE FOR HIRE. The Executive
hereby irrevocably assigns and transfers, and agrees to assign and transfer, to
the Company all of the Executive's right, title and interest in and to any and
all Inventions and Works Made for Hire
8
(each as hereinafter defined) made, generated or conceived by the Executive at
any time during the Term, whether alone or with the assistance of others,
whether or not made, generated or conceived during normal business hours, and
whether or not his employment with the Company is hereafter terminated for any
reason whatsoever. For purposes of this Agreement, "INVENTIONS" shall mean any
and all discoveries, improvements, innovations, ideas, formulae, devices,
systems, software programs, processes, products and any other creations similar
thereto. For purposes of this Agreement, "WORKS MADE FOR HIRE" shall mean any
and all "work made for hire", as that term is defined in Xxxxxxx 000 xx xxx
Xxxxxx Xxxxxx Copyright Law, Title 17 of the United States Code, as amended.
Upon the Company's request, the Executive will promptly execute and sign any and
all applications, assignments, and other documents, and will promptly render all
assistance, which may be reasonably necessary for the Company to obtain patent,
copyright or any other form of intellectual property protection.
10. PROTECTIVE COVENANTS. The Executive acknowledges that his specialized
skills, abilities and contacts are important to the success of the Company, and
agrees that he shall faithfully and strictly adhere to the following covenants:
10.1 NONCOMPETITION. The Executive acknowledges that by reason of
the character and nature of the Company's business activities and operations,
and further by reason of the scope of the territory in which the Executive will
perform the Services, in order to protect the Company's legitimate business
interests it is necessary for the Executive to agree not to engage in certain
specified activities in such territory at any time during the Term and for a
period of time thereafter. Therefore, at all times during the Term, and for a
period of time in which any termination fee is paid to Executive (i.e., twelve
(12) months in the event that the termination fee is paid pursuant to Sections 7
or 8 hereof), the Executive will not, directly or indirectly, within the
Territory (as defined below), (a) for himself, (b) as a consultant, manager,
supervisor, employee or owner of a Competing Business (as defined below), or (c)
as an independent contractor for a Competing Business, engage in any business in
which the Executive provides services which are the same as or substantially
similar to the Services. "COMPETING BUSINESS" shall mean any person, business or
entity who or which sells, markets or distributes products and/or sells,
furnishes or provides services substantially the same as those sold, marketed,
distributed, furnished or supplied by the Company (including Cypress) during the
Term. "TERRITORY" shall mean the geographic area encompassed within a fifty (50)
mile radius of Atlanta, Georgia. The Executive agrees that he and the Company
may amend the definition of "Territory" from and after the date hereof to
reflect any significant contraction or expansion of the geographical area in
which he performs the Services.
10.2 NONSOLICITATION OF CUSTOMERS. The Executive agrees that all
customers whose relationships are managed by the Executive, or with whom the
Executive has contact during the Term, are the Company's customers, and that all
fees and revenues produced from such relationships or contacts are the exclusive
property of the Company. The Executive hereby waives and releases all claims and
rights of ownership to such customer relationships, fees and revenues.
Furthermore, at all times during the Term and for a period of two (2) years
thereafter, the Executive will not directly or indirectly, on his own behalf or
on behalf of any person, firm, partnership, association, corporation, business
organization, entity or enterprise, solicit, call upon or attempt to solicit or
call upon, any customer or prospective customer of the Company, or any
representative of any customer or prospective customer of the Company, with a
view to the sale
9
or provision of any product or service competitive or potentially competitive
with any product or service sold or provided, or under development, by the
Company at any time during the shorter in duration of the Term and the last two
(2) years thereof; provided that the restrictions set forth in this sentence
shall apply only to customers or prospective customers of the Company, or
representatives of customers or prospective customers of the Company, with which
the Executive had material contact at any time during the shorter in duration of
the Term and the last two (2) years thereof. "Material contact" exists between
Executive and each of the Company's existing customers: (i) with whom Executive
actually dealt; or (ii) whose dealings with the Company were handled,
coordinated or supervised by Executive.
10.3 NONSOLICITATION OF EXECUTIVES AND INDEPENDENT CONTRACTORS. At
all times during the Term and for a period of two (2) years thereafter, the
Executive will not directly or indirectly solicit or encourage any employee or
independent contractor of the Company to leave such employment or engagement
with the Company, or directly or indirectly employ or engage in any capacity any
former employee or independent contractor of the Company, unless such former
employee or independent contractor of the Company shall have ceased to be so
employed or engaged by the Company for a period of at least one (1) year
immediately prior to such action by the Executive.
Notwithstanding the provisions of this Section 10, if the Company
terminates the Executive's employment without Cause pursuant to subsection 7.4
hereof or if the Executive terminates with Good Reason pursuant to subsection
7.5 hereof, the obligations of the Executive under subsections 9.1, 9.2 and 9.3
shall expire ninety (90) days after the termination of Executive's employment
without cause.
11. CONSTRUCTION. The Executive acknowledges and agrees that the covenants
and agreements contained in Sections 9 and 10 of this Agreement are of the
essence of this Agreement, and that each of such covenants and agreements is
reasonable and necessary to protect and preserve the interests and business of
the Company. The Executive further acknowledges and agrees that: (1) each of
such covenants and agreements is separate, distinct and severable, not only from
the other of such covenants and agreements, but also from the remaining
provisions of this Agreement, (ii) the unenforceability of any such covenants or
agreements shall not affect the validity or enforceability of any other such
covenants or agreements or any other provision or provisions of this Agreement,
and (iii) in the event any court of competent jurisdiction or arbitrator, as
applicable, determines, rules or holds that any such covenant or agreement
hereof is overly broad or against the public policy of the state, then said
court or arbitrator, as the case may be, is specifically authorized to reform
and narrow said covenant or agreement to the extent necessary to make said
reformed and narrowed covenant or agreement valid and enforceable.
12. REMEDIES. It is specifically understood and agreed that (i) any breach
of any of the provisions of Section 9 or 10 of this Agreement is likely to
result in irreparable injury to the Company, (ii) the remedy at law alone will
be an inadequate remedy for such breach, and (iii) in addition to any other
remedy it may have for such breach, the Company shall be entitled to enforce the
specific performance of this Agreement by the Executive and to seek both
temporary and permanent injunctive relief (to the extent permitted by law)
without the necessity of proving actual damages. Notwithstanding any other
provision of this Agreement to the contrary, any and
10
all obligations of the Company to pay any compensation to the Executive for any
reason shall cease and terminate upon the material breach by the Executive of
any of the obligations of the Executive under Sections 8 or 9 of this Agreement.
13. EXISTING RESTRICTIVE COVENANTS AND INDEMNIFICATION. The Executive
represents and warrants that (i) the Executive is not a party to or subject to
any outstanding contract, agreement or order whereby the Executive is prohibited
from entering into this Agreement, or any outstanding restrictive covenant or
noncompetition agreement which would interfere with or prevent the Executive's
employment hereunder as contemplated by this Agreement; (ii) the Executive has
performed any and all duties or obligations that he may have under any contract
or agreement with a former employer or other party, including, without
limitation, the return of all confidential materials; and (iii) the Executive is
currently not in possession of any confidential materials or property belonging
to any such former employer or other party. The Executive acknowledges and
agrees that he shall advise the Company in the event that his duties with the
Company should be changed or enlarged in such a manner as to conflict with any
such prior contract, agreement, order or restrictive covenant. Without
limitation on any other rights or remedies available to the Company with respect
to the Executive's breach of his obligations hereunder, the Executive shall
defend, indemnify and hold the Company, the Affiliates, and each of their
respective shareholders, officers, directors, employees, counsel, agents,
affiliates and assigns (collectively, the "COMPANY INDEMNITEES") harmless from
and against any and all direct or indirect demands, claims, payments,
obligations, recoveries, deficiencies, fines, penalties, assessments, actions,
causes of action, suits, losses, diminution in the value of assets of the
Company, compensatory, punitive, exemplary or consequential damages (including,
without limitation, lost income and profits and interruptions of business),
liabilities, costs. expenses, and interest on any amount payable to a third
party as a result of the foregoing, whether accrued, absolute, contingent,
known, unknown or otherwise asserted against, imposed upon or incurred by the
Company Indemnitees, or any of them, by reason of or resulting from, arising out
of, based upon or otherwise in respect of (1) any conflict between the
Executive's employment hereunder and any prior employment, duty, contract,
express or implied agreement, order or restrictive covenant, or (2) any
misrepresentation by the Executive hereunder as to any facts which are the
subject matter of any conflict or violation of any prior contract, agreement,
order or restrictive covenant on the part of the Executive.
14. NOTICES. All notices, requests, demands and other communications
required or permitted hereunder shall be in writing and, if mailed by prepaid
first class mail or certified mail, return receipt requested, at any time other
than during a general discontinuance of postal service due to strike, lockout or
otherwise, shall be deemed to have been received on the earlier of the date
shown on the receipt or three (3) business days after the postmarked date
thereof. In addition, notices hereunder may be delivered by hand, in which event
the notice shall be deemed effective when delivered, or by overnight courier, in
which event the notice shall be deemed to have been received on the nest
business day following delivery to such courier. All notices and other
communications under this Agreement shall he given to the parties hereto at the
following addresses:
11
(a) If to the Company:
U.S. RealTel, Inc.
00 Xxxxxxxx Xxxxxx #000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. XxXxxx, President & CEO
(b) If to the Executive:
Xxxxxxxxx X. Xxxxxxx
0000 Xxxxxxx Xxxxx, X.X.
Xxxxxxx, XX 00000-0000
unless and until notice of another or different address shall be given as
provided herein.
15. MISCELLANEOUS.
15.1 ENTIRE AGREEMENT. This Agreement, including all Exhibits and
all other attachments hereto, if any, embodies the entire agreement between, and
the understanding of, the parties hereto in respect of the subject matter
contained herein. The parties hereto have not relied upon any promises,
representations, warranties, agreements, covenants or undertakings, other than
those expressly set forth or referred to herein. This Agreement supersedes all
prior or contemporaneous negotiations, understandings and agreements, whether
written or oral, between the parties hereto with respect to the subject matter
contained herein.
15.2 EXTENSIONS, MODIFICATIONS OR AMENDMENTS. No extension,
modification or amendment of this Agreement shall be binding upon a party hereto
unless such extension, modification or amendment is set forth in a written
instrument which is executed and delivered on behalf of such party, which in the
case of the Company must be by a duly authorized officer of the Company only
upon the express, prior authorization of the Board.
15.3 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs,
beneficiaries, successors and permitted assigns; and shall also inure to the
benefit of the Affiliates and their respective successors and assigns.
Notwithstanding the foregoing, neither party shall assign any of his or its
rights or obligations hereunder to any other person or entity without the prior
written consent of the other.
15.4 CAPTIONS. The captions herein have been inserted solely for
convenience of reference and in no way define, limit or describe the scope or
substance of any provision of this Agreement.
15.5 SEVERABILITY. In case any one or more of the provisions
contained in this Agreement shall for any reason be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Agreement, and this Agreement shall
be construed as if such invalid, illegal or unenforceable provision were limited
or modified, consistent with its general intent, to the extent necessary so that
it shall be valid, legal and enforceable, or if it shall not be possible to so
limit or modify such
12
invalid, illegal or unenforceable provision, this Agreement shall be construed
as if such invalid, illegal or unenforceable provision had never been contained
herein, and all other provisions hereof shall be and remain unimpaired and in
full force and effect.
15.6 WAIVER. The failure or delay of either party hereto at any time
or times to require performance of any provision of this Agreement shall in no
manner affect its or his right to enforce that provision. No single or partial
waiver by either party hereto of any condition of this Agreement, or of the
breach of any term, agreement or covenant or of the inaccuracy of any
representation or warranty of this Agreement, whether by conduct or otherwise,
in any one or more instances shall be construed or deemed to be a further or
continuing waiver of any such condition, breach or inaccuracy or a waiver of any
other condition, breach or inaccuracy.
15.7 GOVERNING LAW. This Agreement, including, without limitation,
the obligations, rights and remedies of the parties hereto, and any and all
claims arising out of the relationship between the parties hereto, shall be
governed by and construed in accordance with the laws of the State of Georgia,
without giving effect to any conflicts or choice of laws principles which
otherwise might be applicable.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement,
or caused this Agreement to be executed, effective as of the day and year first
above written.
COMPANY:
U.S. REALTEL, INC.
By: /s/ Xxxxxxx X. XxXxxx
----------------------------
Xxxxxxx X. XxXxxx
President & CEO
EXECUTIVE:
/s/ Xxxxxxxxx X. Xxxxxxx
-------------------------------
Xxxxxxxxx X. Xxxxxxx
13
