JATO COMMUNICATIONS CORP.
AMENDED AND RESTATED FOUNDERS EMPLOYMENT TRANSITION AND SEPARATION AGREEMENT
FOR
XXXXX X. XXXX
THIS AMENDED AND RESTATED FOUNDERS EMPLOYMENT TRANSITION AND SEPARATION
AGREEMENT ("AGREEMENT") is entered into as of the 3rd day of April, 2000,
("Execution Date") by and between XXXXX X. XXXX ("Xx. Xxxx") and JATO
COMMUNICATIONS CORP., a Delaware corporation (the "Company").
RECITALS
WHEREAS, Xx. Xxxx has been employed by the Company as its President and
Chief Executive Officer; and
WHEREAS, the Company and Xx. Xxxx are parties to an employment
agreement dated April 16, 1999; and
WHEREAS, the Company has materially reduced the job responsibilities of
Xx. Xxxx; and
WHEREAS, as a result of the material reduction of his job
responsibilities, Xx. Xxxx has tendered his resignation with the Company under
the terms and conditions hereinafter set forth; and
WHEREAS, the Company and Xx. Xxxx entered into a Founder Employment
Transition and Separation Agreement dated February 10, 2000; and
WHEREAS, the Company has accepted Xx. Xxxx'x resignation as President
and Chief Executive Officer; and
WHEREAS, the Company and Xx. Xxxx desire to replace the terms of the
April 16, 1999 Employment Agreement; and
WHEREAS, the Company and Xx. Xxxx desire to amend and restated in its
entirety the Founders Employment Transition and Separation Agreement dated
February 10, 2000 with this Agreement; and
WHEREAS, the Company wishes to employ Xx. Xxxx in the capacity and
under the terms and conditions hereinafter set forth, and Xx. Xxxx is willing to
be so employed by the Company.
NOW, THEREFORE, in consideration of the recitals set forth above that
are incorporated by reference herein and the mutual promises and covenants
contained herein, it is hereby agreed by and between the parties hereto as
follows:
AGREEMENT
1. RESIGNATION. Xx. Xxxx has tendered and the Company has accepted
Xx. Xxxx'x resignation as President and Chief Executive Officer and any and all
other positions he may have held with the Company or any affiliates or
subsidiaries of the Company.
2. CONTINUED EMPLOYMENT BY THE COMPANY. Xx. Xxxx will continue as an
employee of the Company until such time as his employment is terminated as set
forth in paragraph 6 herein. From the Execution Date through the Separation
Date, as defined in paragraph 6 below, Xx. Xxxx shall be available to provide
such services as are requested by the Company's Board of Directors.
2.1 COMPENSATION. The Company agrees to continue to compensate
Xx. Xxxx at the same rate of regular salary he received as of the Execution
Date, less all applicable deductions and withholdings, payable on a
semi-monthly basis or in accordance with the Company's customary practices
(as they may be changed by the Company from time to time in its sole
discretion).
2.2 BENEFITS. The Company shall continue to make available to
Xx. Xxxx all Company benefits available and received by Xx. Xxxx immediately
before the Execution Date. Notwithstanding the prior sentence, Xx. Xxxx
agrees and acknowledges that from the Execution Date through the Separation
Date, Xx. Xxxx is not entitled to nor will he accrue any vacation time,
holiday leave or sick leave.
2.3 RESTRICTED STOCK. As of the Execution Date, Xx. Xxxx owns or
is deemed to be the beneficial owner of 3,243,604 shares of Common Stock, of
which 973,081 were vested and 2,270,523 were not yet vested. Unless Xx. Xxxx
voluntarily resigns as an employee or is terminated for Cause (as defined below)
prior to such date, the 2,270,523 unvested shares will vest the earlier of the
Company's initial public offering or in two installments, the first installment
of 1,135,262 shares on March 31, 2000 and the second installment of 1,135,261
shares on June 30, 2000. All shares of Common Stock in this Agreement, unless
otherwise noted, reflect a 1.407 for 1 forward stock split to take effect on or
around March 29, 2000.
2.4 VOLUME LIMITATION. Should the Company launch an initial
public offering ("IPO"), the Company shall sell all shares to be sold in the
IPO, excluding those shares to be sold pursuant to the exercise, if any, of
the underwriters' over-allotment option to purchase additional shares of
common stock within 30 days from the date of the final prospectus pertaining
to the Company's IPO (the "Green Shoe"). The Company and Xx. Xxxx agree, that
should the Green Shoe be exercised, all shares to be sold pursuant to the
underwriters' exercise of the Green Shoe, shall be those shares held by the
Founders (for purposes herein the term "Founders" refers to Xxxxx X. Xxxxx,
Xxxxxxx Xxxxxx and Xxxxx X. Xxxx). Xx. Xxxx and the other Founders have
executed a lockup agreement with Xxxxxxx Xxxxx & Co. and other
representatives of the underwriters (the "Xxxxxxx Xxxxx Lockup"). The Company
acknowledges that it is not a party to the Xxxxxxx Xxxxx Lockup and that it
shall not have any rights to enforce the Xxxxxxx Xxxxx Lockup. Separate and
apart from the Xxxxxxx Xxxxx Lockup, Xx. Xxxx and the other Founders agree
that the number of shares the Founders can sell during the 180 day period
following the date which is 180 days from the date of the Purchase Agreement
related to the IPO (the "Additional Lockup"), will be limited (the "Volume
Limitation Period"). The terms of the Volume Limitation Period are as follows:
(a) The Founders will be limited to the sale of an
aggregate of 2,462,250 shares during the Volume Limitation Period. The Founders
shall be solely responsible for allocating the number of shares each Founder
will be permitted to sell during the Volume Limitation Period. Shares sold under
this provision may be sold in only broadly distributed underwritten public
offerings or normal Rule 144 open market transactions.
(b) As long as Xx. Xxxx maintains ownership in the
Company Xx. Xxxx shall also be bound by the following restrictions:
(i) to not knowingly sell his shares of the
Company stock to a person or group who, as a result of such sale, would own 5%
or more of the Company's outstanding stock or to directly or indirectly solicit
any person or group to purchase from him or any other Founder shares in the
Company if such person or group, as a result of such purchase, would own 5% or
more of the Company's outstanding stock; and
(ii) to not knowingly sell his shares of the
Company stock to a Company competitor (as defined in paragraph 8.1) or to
directly or indirectly solicit any competitor (as defined in paragraph 8.1) to
purchase from him shares in the Company; and
(iii) to not engage in, or support, a hostile
proxy solicitation.
2.5 FORGIVENESS OF NOTE. The Company loaned to Xx. Xxxx the amount
of $100,000, pursuant to that certain promissory note (the "Note"). Unless Xx.
Xxxx'x employment with the Company is terminated for Cause, as defined herein,
or if Xx. Xxxx voluntarily terminates his employment, in each case prior to
March 31, 2000, the Company agrees to forgive all outstanding amounts payable,
including interest, on said Note and after said date, Xx. Xxxx'x obligations of
repayment under the Note shall cease effective on March 31, 2000. Xx. Xxxx
acknowledges that he is solely responsible for all tax consequences relating to
the forgiveness of the Note.
2.6 VACATION PAY-OUT. The parties agree that on the
Separation Date the accrued but unused vacation shall be 20 days.
2.7 SEPARATION AND RELEASE AGREEMENT. As part of this Agreement,
Xx. Xxxx agrees to enter into the Separation and Release Agreement attached
hereto as Exhibit B, within the time set forth in said Separation and Release
Agreement.
3. POLICIES AND PROCEDURES. Xx. Xxxx agrees that he is subject to and will
comply with the policies and procedures of the Company, as such policies and
procedures may be modified, added to or eliminated from time to time at the sole
discretion of the Company Board of Directors, except to the extent any such
policy or procedure specifically conflicts with the express terms of this
Agreement. Xx. Xxxx further agrees and acknowledges that any written or oral
policies and procedures of the Company do not constitute contracts between the
Company and Xx. Xxxx.
4. PROPRIETARY INFORMATION OBLIGATIONS.
4.1 AGREEMENT. Except as set forth herein, Xx. Xxxx agrees to
continue to abide by Xx. Xxxx'x previously executed Non-Competition, Proprietary
Information and Inventions Agreement attached hereto as EXHIBIT A.
4.2 REMEDIES. Xx. Xxxx'x duties under the Non-Competition,
Proprietary Information and Inventions Agreement shall survive termination of
his employment with the Company. Xx. Xxxx acknowledges that a remedy at law for
any breach or threatened breach by him of the provisions of the Non-competition,
Proprietary Information and Inventions Agreement would be inadequate, and he
therefore agrees that the Company shall be entitled to injunctive relief in case
of any such breach or threatened breach. By seeking injunctive relief the
Company does not waive any other rights or remedies it may have.
5. OUTSIDE ACTIVITIES. Except with the prior written consent of the
Company's Board of Directors, Xx. Xxxx will not, from the Execution Date through
the Separation Date, undertake or engage in any other employment, occupation or
business enterprise, other than those in which Xx. Xxxx is a passive investor,
non-executive board member or which takes less than 10% of Xx. Xxxx'x business
time. Xx. Xxxx may engage in civic and not-for-profit activities so long as such
activities do not materially interfere with the performance of his duties
hereunder.
6. TERMINATION OF EMPLOYMENT. Either Xx. Xxxx or the Company may terminate
the employment relationship at any time for any reason whatsoever, with thirty
(30) days prior written notice by the Company and with thirty (30) days' prior
written notice by Xx. Xxxx with or without Cause or advance notice. This at-will
employment relationship cannot be changed except in a writing approved by the
Board. Notwithstanding this at-will employment relationship, Xx. Xxxx'x
employment with the Company shall automatically terminate upon the earlier of
the closing of the Company's initial public offering or on June 30, 2000.
Whether terminated for cause, without cause, automatically as provided in the
previous sentence or voluntarily terminated by Xx. Xxxx, such termination is
defined herein as the "Separation Date." Xx. Xxxx shall remain as a member of
the Board of Directors of the Company and the member of the Board of Directors
of any affiliates or subsidiaries of the Company until June 30, 2000. On June
30, 2000, Xx. Xxxx agrees to tender his resignation from the Board of Directors
of the Company and from the Board of Directors of any affiliates or subsidiaries
of the Company.
6.1 SEVERANCE PAYMENT. If the Company terminates Xx. Xxxx'x
employment without Cause at any time or if Xx. Xxxx employment terminates
automatically as set forth in paragraph 6 herein, Xx. Xxxx will receive as
severance: (i) a lump sum payment equal to one (1) year of base salary, less
payroll deductions and required withholdings pursuant to the Separation
Agreement attached as Exhibit B, (ii) a lump sum payment of that portion of the
bonus Xx. Xxxx is entitled to for the calendar year pro-rated based upon the
number of full months Xx. Xxxx was employed in such year pursuant to the
Separation Agreement attached as Exhibit B, (iii) continuation of all company
benefits for a period of one (1) year pursuant to the Separation Agreement
attached as Exhibit B, and (iv) termination of all repurchase rights on
Xx. Xxxx'x stock, in exchange for the execution of a release of all claims
against the Company in the form attached as Exhibit B; PROVIDED, THAT, in the
event of termination due to Disability, this subsection (iv) shall apply only
with respect to 50% of any unvested stock held by Xx. Xxxx on the date of
termination and with respect to the waiver of repurchase rights of 50% of any
unvested shares held by Xx. Xxxx on the date of termination; PROVIDED,
FURTHER, that Xx. Xxxx shall remain a party to, and subject to the provisions
of, the Investors' Rights Agreement. If Xx. Xxxx voluntarily resigns or if
Xx. Xxxx'x employment is terminated for Cause, all compensation and benefits
will cease immediately and Xx. Xxxx will receive no severance benefits.
6.2 CAUSE. For purposes of this Agreement, "CAUSE" shall mean
misconduct, including: (i) conviction of any felony or any crime involving moral
turpitude or dishonesty; (ii) participation in a fraud or act of dishonesty
against the Company; (iii) willful breach of the Company's policies; (iv)
intentional damage to the Company's property; (v) material breach of this
Agreement or Xx. Xxxx'x Proprietary Information and Inventions Agreement; (vi) a
failure or refusal in a material respect of Xx. Xxxx to follow the reasonable
policies or directions of the Company as specified by the Board of Directors
after being provided with notice of such failure and an opportunity to cure
within seven (7) days of receipt of such notice; or (vii) failure to carry out
the duties of the Xx. Xxxx'x position after being provided with notice of such
failure and an opportunity to cure. Disability shall not constitute "Cause."
6.3 DISABILITY. For purposes of this Agreement, "DISABILITY" shall
mean a disability that prevents Xx. Xxxx from substantially performing his
duties under this Agreement for a period of at least 90 consecutive days or 180
non-consecutive days within any 365-day period.
6.4 DEATH. In the event of death, the Company shall pay to
Xx. Xxxx'x estate any earned but unpaid salary at the time of death and, at
the time such amount would otherwise have been due, a pro rata portion of a
discretionary bonus, if any, which may otherwise have been paid to Xx. Xxxx
with respect to the annual period in which the death occurs. Furthermore, the
Company shall waive its repurchase rights with respect to 50% of any unvested
shares as of the date of death; PROVIDED, HOWEVER, that Xx. Xxxx'x estate,
administrator or distributor shall become a party to, and be subject to the
provisions of, the Investors' Rights Agreement. In addition, the acceleration
provisions set forth in paragraph 2.3 herein shall remain in effect,
PROVIDED, HOWEVER, that Xx. Xxxx'x estate, administrator or distributor shall
become a party to, and be subject to the provisions of, this Agreement.
7. BUSINESS EXPENSE REIMBURSEMENT. The Company agrees to reimburse
Xx. Xxxx for those reasonable business expenses he necessarily incurs in his
capacity as a Company employee and member of the Board of Directors
consistent with the Company's policies in this regard. Xx. Xxxx must submit
the necessary documentation establishing the amount, date and reason for
expenses he incurred and for which he seeks reimbursement.
8. NON-COMPETITION AND NON-SOLICITATION. Xx. Xxxx acknowledges that prior
to the Separation Date, the Company employed him, among other things, as a
member of executive and management personnel. Xx. Xxxx further acknowledges that
during his employment at the Company, he was and will be privy to extremely
sensitive, confidential and valuable commercial information, which constitutes
trade secrets belonging to the Company, the disclosure of which information and
secrets would greatly harm the Company.
8.1 NON-COMPETITION COVENANT. As a reasonable measure to protect
the Company from the harm of such disclosure and use of its information and
trade secrets against it, Xx. Xxxx agrees to the following as part of this
Agreement: Xx. Xxxx agrees that he shall not, individually or together with
others, directly or indirectly, during his employment with the Company and for a
period of twelve (12) months from the Separation Date, for any reason, whether
as an owner, consultant, partner, joint venturer, stockholder, broker, agent,
financial agent, principal, trustee, licensor or in any other capacity
whatsoever, own, manage, operate, join, control, finance or participate in the
ownership, management, operation, control or financing of, or be connected as an
officer, director, employee, partner, principal, agent, representative,
consultant, licensor, licensee or otherwise with, any business or enterprise in
any city, county, or state of the United States, or any other xxxxxxxx, xxxxxx,
xxxxxxxxx, country, or jurisdiction, which provides high speed data transmission
services in a market in which the Company has at least one (1) operational DSLAM
or at least one (1) central office location under construction as of the
Separation Date. An acquisition or ownership of less than 5% of the outstanding
shares of any publicly traded company will not constitute a violation of this
Agreement.
8.2 NON-SOLICITATION COVENANT. As a reasonable measure to protect
the Company from the harm of such disclosure and use of its information and
trade secrets against it, the parties agree to the following as part of this
Agreement: Xx. Xxxx acknowledges and agrees that information regarding employees
of the Company is Confidential Information, including without limitation, the
names of the Company employees; information regarding the skills and knowledge
of employees of the Company; information regarding any past, present, or
intended compensation, benefits, policies and incentives for employees of the
Company; and information regarding the management and reporting structure of the
Company. Xx. Xxxx agrees that he will not, individually or with others, directly
or indirectly (including without limitation, individually or through any
business, venture, proprietorship, partnership, or corporation in which they
control or own more than a five (5) percent interest, through any agents,
through any contractors, through recruiters, by their successors, by their
employees, or by their assigns) hire, solicit, or induce any employee of the
Company to leave the Company during the period Xx. Xxxx is employed by the
Company and for a period of twelve (12) months from the Separation Date.
Xx. Xxxx further agrees that during the period he is employed by the Company
and for a period of twelve (12) months from the Separation Date, he will not,
either directly or indirectly, solicit or attempt to solicit any customer,
client, supplier, investor, vendor, consultant or independent contractor of
the Company to terminate, reduce or negatively alter his, her or its
relationship with the Company. The geographic scope of the covenants in this
paragraph shall include any city, county, or state of the United States and
any such other city, territory, country, or jurisdiction in which the Company
does business. Nothing in this paragraph should be construed to narrow the
obligations of Xx. Xxxx imposed by any other provision herein, any other
agreement, law or other source.
8.3 REASONABLE. Xx. Xxxx agrees and acknowledges that the time
limitation and the geographic scope on the restrictions in this paragraph 8 and
its subparts are reasonable. Xx. Xxxx also acknowledges and agrees that the
limitation in this paragraph 8 and its subparts is reasonably necessary for the
protection of the Company, that through this Agreement he shall receive adequate
consideration for any loss of opportunity associated with the provisions herein,
and that these provisions provide a reasonable way of protecting the Company's
business value which was imparted to him. In the event that any term, word,
clause, phrase, provision, restriction, or section of this paragraph 8 of this
Agreement is more restrictive than permitted by the law of the jurisdiction in
which the Company seeks enforcement thereof, the provisions of this Agreement
shall be limited only to that extent that a judicial determination finds the
same to be unreasonable or otherwise unenforceable. Moreover, notwithstanding
any judicial determination that any term, word, clause, phrase, provision,
restriction, or section of this Agreement is not specifically enforceable, the
parties intend that the Company shall nonetheless be entitled to recover
monetary damages as a result of any breach hereof.
8.4 LEGAL AND EQUITABLE REMEDIES. In view of the nature of the
rights in goodwill, employee relations, trade secrets, and business reputation
and prospects of the Company to be protected under this paragraph 8 of this
Agreement, Xx. Xxxx understands and agrees that the Company could not be
reasonably or adequately compensated in damages in an action at law for
Xx. Xxxx'x breach of his obligations hereunder. Accordingly, Xx. Xxxx
specifically agrees that the Company shall be entitled to temporary and
permanent injunctive relief, specific performance, and other equitable relief
to enforce the provisions of this paragraph 8 of this Agreement and that such
relief may be granted without the necessity of proving actual damages, and
without bond. XX. XXXX ACKNOWLEDGES AND AGREES THAT THE PROVISIONS IN THIS
PARAGRAPH 8 AND ITS SUBPARTS ARE ESSENTIAL AND MATERIAL TO THIS AGREEMENT,
AND THAT UPON BREACH OF THIS PARAGRAPH 8 BY HIM, THE COMPANY IS ENTITLED TO
WITHHOLD PROVIDING PAYMENTS OR CONSIDERATION, TO EQUITABLE RELIEF TO PREVENT
CONTINUED BREACH, TO RECOVER DAMAGES AND TO SEEK ANY OTHER REMEDIES AVAILABLE
TO THE COMPANY. This provision with respect to injunctive relief shall not,
however, diminish the right of the Company to claim and recover damages or
other remedies in addition to equitable relief.
8.5 EXTENSION OF TIME. In the event that Xx. Xxxx breaches any
covenant, obligation or duty in this paragraph 8 or its subparts, any such duty,
obligation, or covenants to which the parties agreed by this paragraph 8 and its
subparts shall automatically toll from the date of the first breach, and all
subsequent breaches, until the resolution of the breach through private
settlement, judicial or other action, including all appeals. The duration and
length of Xx. Xxxx'x duties and obligations as agreed by this paragraph 8 and
its subparts shall continue upon the effective date of any such settlement, or
judicial or other resolution.
9. GENERAL PROVISIONS.
9.1 NOTICES. Any notices provided hereunder must be in writing and
shall be deemed effective upon the earlier of personal delivery (including
personal delivery by telex) or the third day after mailing by first class mail,
to the Company at its primary office location and to Xx. Xxxx at his address as
listed on the Company's then current payroll records.
9.2 TAX CONSEQUENCES. Xx. Xxxx agrees to indemnify the Company and
hold the Company harmless from any and all claims or penalties asserted against
the Company for any failure to pay taxes due on any consideration provided by
the Company pursuant to this Agreement. Xx. Xxxx expressly acknowledges that the
Company has not made, nor herein makes, any representation about the tax
consequences of any consideration provided by the Company to Xx. Xxxx pursuant
to this Agreement.
9.3 COOPERATION. Xx. Xxxx agrees to fully cooperate with the
Company with respect to its corporate relationships. Xx. Xxxx further agrees to
cooperate with the Company in connection with any defense of or prosecution by
the Company regarding any litigation in which the Company may be involved as a
party or non-party in from time to time.
9.4 NON-DISPARAGEMENT. Xx. Xxxx and the Company agree that neither
party will at any time disparage the other to third parties in any manner likely
to be harmful to the other party, their business reputation, or the personal or
business reputation of its directors, shareholders and/or employees.
Notwithstanding the prohibition in the preceding sentence, each party shall
respond accurately and fully to any question, inquiry, or request for
information when required by legal process, or when posed by a governmental
entity
9.5 THE COMPANY PROPERTY. Unless authorized by the Company, on the
Separation Date, Xx. Xxxx agrees to return to the Company all Company documents
(and all copies thereof) and any and all other Company property in Xx. Xxxx'x
possession, custody or control, including, but not limited to, financial
information, customer information, customer lists, employee lists, Company
files, notes, cellular telephones, personal computers, personal computers,
contracts, drawings, records, business plans and forecasts, financial
information, specifications, computer-recorded information, software, tangible
property, credit cards, entry cards, identification badges and keys, and any
materials of any kind which contain or embody any proprietary or confidential
material of the Company (and all reproductions thereof).
9.6 SEVERABILITY. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provisions had never been contained herein.
9.7 WAIVER. If either party should waive any breach of any
provisions of this Agreement, he or it shall not thereby be deemed to have
waived any preceding or succeeding breach of the same or any other provision of
this Agreement.
9.8 COMPLETE AGREEMENT. This Agreement and EXHIBITS A AND B
hereto, constitute the entire agreement between Xx. Xxxx and the Company and it
is the complete, final, and exclusive embodiment of their agreement with regard
to this subject matter. This Agreement supersedes and replaces the Employment
Agreement dated April 16, 1999. It is entered into without reliance on any
promise or representation other than those expressly contained herein, and it
cannot be modified or amended except in a writing signed by an officer of the
Company.
9.9 COUNTERPARTS. This Agreement may be executed in separate
counterparts, any one of which need not contain signatures of more than one
party, but all of which taken together will constitute one and the same
Agreement.
9.10 HEADINGS. The headings of the sections hereof are inserted for
convenience only and shall not be deemed to constitute a part hereof nor to
affect the meaning thereof.
9.11 SUCCESSORS AND ASSIGNS. This Agreement is intended to bind and
inure to the benefit of and be enforceable by Xx. Xxxx and the Company, and
their respective successors, assigns, heirs, executors and administrators,
except that Xx. Xxxx may not assign any of his duties hereunder and he may not
assign any of his rights hereunder without the written consent of the Company,
which shall not be withheld unreasonably.
9.12 ATTORNEY FEES. If either party hereto brings any action to
enforce his or its rights hereunder, the prevailing party in any such action
shall be entitled to recover his or its reasonable attorneys' fees and costs
incurred in connection with such action.
9.13 CHOICE OF LAW. All questions concerning the construction,
validity and interpretation of this Agreement will be governed by the law of the
State of Colorado.
9.14 SURVIVAL. The following provisions of this Agreement shall
survive the termination of Xx. Xxxx'x employment as an employee or independent
contractor and the assignment of this Agreement by the Company to any successor
in interest or other assignee: Sections 2.4, 4, 8, and 9.
9.15 INJUNCTIVE RELIEF. Xx. Xxxx acknowledges that the restrictions
set forth in Sections 2.4, 4, 8, and 9 above are necessary to protect the
Company's confidential proprietary information and other legitimate business
interests and are reasonable in all respects, including duration, territory and
scope of activity restricted. Xx. Xxxx further acknowledges that the provisions
of Sections 2.4, 4, 8, and 9 hereof are essential to the Company, that the
Company would not enter into this Agreement if it did not include these
provisions and that damages sustained by the Company as a result of a breach of
these provisions cannot be adequately remedied by damages, and Xx. Xxxx agrees
that the Company, in addition to any other remedy it may have under this
Agreement or at law, shall be entitled to injunctive and other equitable relief
to prevent or curtail any breach of Sections 2.4, 4, 8, and 9 of this Agreement.
Xx. Xxxx agrees that the existence of any claim or cause of action by Xx. Xxxx
against the Company or its affiliates, whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by the Company of
any of the provisions of this Agreement. Xx. Xxxx shall have no right to enforce
any of his rights under this Agreement by seeking or obtaining injunctive or
other equitable relief and acknowledges that damages are an adequate remedy for
any breach by the Company of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first above written.
JATO COMMUNICATIONS CORP.
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------------
Xxxxxx Xxxxxxxx,
President and Chief Executive
Officer
By: /s/ Xxxxx X. Xxxx
-----------------------------------
XXXXX X. XXXX
Exhibit A: Non-Competition, Proprietary Information and Inventions Agreement.
Exhibit B: Separation and Release Agreement.
