Exhibit 10.10
EXECUTION COPY
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (this "Agreement"), dated as of October 21,
1998 (the "Effective Date"), is made by and between Pac-West Telecomm, Inc., a
California corporation (the "Company"), and Xxxxxx X. Xxxxx ("Executive").
Capitalized terms used herein and not otherwise defined herein have the meanings
given to such terms in paragraph 14 hereof.
WHEREAS, the Company desires to employ Executive in the capacity and
on the terms and conditions set forth herein, and Executive desires to accept
such employment in such capacity and on such terms and conditions.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agrees as follow:
1. Employment. The Company shall employ Executive, and Executive
hereby accepts employment with the Company, upon the terms and conditions set
forth in this Agreement for the period beginning on the Effective Date and
ending as provided in paragraph 4 below (the "Employment Period").
2. Position and Duties.
(a) During the Employment Period, Executive shall serve as the Vice
President of Finance and Treasurer of the Company and shall have such duties,
responsibilities and authority as shall be determined by the Company's Chief
Executive Officer and Chief Financial Officer.
(b) Executive shall report to the company's Chief Financial Officer,
and Executive shall devote his best efforts and his business time and attention
(on a full-time equivalent basis) to the business and affairs of the Company and
its Subsidiaries. Executive shall perform his duties and responsibilities to the
best of his abilities in a diligent, trustworthy, businesslike and efficient
manner.
3. Compensation and Benefits.
(a) Base Salary. During the Employment Period, Executive's base
salary shall be $115,000 or such higher rate as the Company's Chief Executive
Officer in his sole discretion may designate from time to time (the "Base
Salary"), which salary shall be payable in regular installments in accordance
with the Company's general payroll practices and shall be subject to customary
withholding and other customary deductions.
(b) Bonuses. The Company shall award a bonus (the "Annual Bonus") to
Executive in an amount to be determined prior to each fiscal year by the Chief
Executive Officer and Executive. The Annual Bonus may be structured, as agreed
upon by Executive and the Chief Executive Officer in good faith, to provide for
a portion of the Annual Bonus to be paid upon the achievement of the Company of
certain separate specific objectives with such objectives generally designed to
provide Executive with an Annual Bonus of 25% of the Base Salary in a normal
year. The Annual Bonus may exceed 25% of the Base Salary as determined by the
Chief Executive Officer in his discretion. Such Annual Bonus shall be payable
within 90 days following the end of each fiscal year during the Employment
Period based upon the Company having achieved such specific objectives for such
fiscal year determined by the Chief Executive Officer and the Executive in good
faith prior to such fiscal year and based upon the Executive's performance
during such fiscal year.
(c) Benefits.
(i) During the Employment Period, Executive shall be
entitled to participate in all of the Company's employee benefit plans
and programs for which similarly situated executive employees of the
Company are generally eligible (subject to the Company's right to
amend, modify, or terminate any such plan or program in accordance
with its terms and applicable law and subject in each case to any
applicable waiting periods or other restrictions contained in such
benefit plans or programs), which shall include, but shall not be
limited to, health insurance, dental insurance and participation in
the Company's 401(k) plan. The Company shall match any contributions
made by Executive to the Company's 401(k) plan to the extent
consistent with the Company's past practice and the terms of such plan
and to the extent consistent with the applicable law.
(ii) Executive shall be entitled to three (3) weeks of paid
vacation during each year of the Employment Period, in addition to
legal holidays. Vacation hereunder shall accrue from year to year
based upon the Company's then current policy for all employees as
established from time to time by the Board in its sole discretion.
(iii) The Company shall reimburse Executive for all
reasonable expenses incurred by him in the course of performing his
duties under this Agreement which are consistent with the terms of
this Agreement and the Company's policies in effect from time to time
with respect to travel, entertainment and other business expenses,
subject to the Company's general policies with respect to reporting
and reasonable documentation of such expenses.
(d) Stock Options. Executive shall be eligible to participate
in the Company's employee stock option plans and other employee equity
incentive plans for which other similarly situated executive employees
of the Company are eligible. The amount of any awards under such plans
to Executive shall be determined by the Board in its sole discretion.
4. Term and Termination.
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The Employment Period shall be for an initial term ending on the first
anniversary of the Effective Date (the "Initial Term") and shall be
automatically extended for successive one-year periods (each, an "Additional
Term," and the Initial Term as extended by any Additional Term, the "Term")
unless either party gives written notice of the termination of the Employment
Period to the other party at least 60 days prior to the expiration of the
Initial Term or any Additional Term (such notice, a "Termination Notice");
provided that, notwithstanding anything in this Agreement to the contrary,
expressed or implied, or Section 2924 of the California Labor Code or any
similar provision of applicable law, the Employment Period shall terminate prior
to the expiration of the Term upon (i) Executive's resignation for any reason
(with such resignation being effective 30 days after notice thereof is delivered
by Executive to the Company), (ii) Executive's death or Disability or (iii)
termination of Executive's employment by the Company with or without cause.
5. Severance.
(a) If the Employment Period is terminated by the Company without
Cause, Executive shall be entitled to receive an amount equal to his Base Salary
at the times set forth in this Agreement for the remainder of the Term (for
purposes of this Section 5(a), the "Severance Period"), so long as Executive has
not breached and does not breach the provisions of any paragraphs 6, 7, 8, 9,
10, or 12 below during the time period set forth therein or in the agreement
referenced thereby.
(b) If the Employment Period is terminated as a result of Executive's
Disability, Executive and/or his estate or beneficiaries, as the case may be,
shall be entitled to receive benefits under the Company's employee benefit
programs as in effect on the date of such termination to the extent permitted
thereunder and, in addition, shall be entitled to receive (i)an amount equal to
Executive's Base Salary at the times set forth in this Agreement for the
one-year period after the termination of the Employment Period and (ii) the
amount of any Annual Bonus otherwise payable to Executive pursuant to paragraph
3(b) above for the fiscal year in which Executive's employment is terminated,
except that the amount of any such Annual Bonus otherwise payable pursuant to
this paragraph 5(b) shall be pro rated on the basis of the number of days during
such fiscal year that Executive was employed by the Company.
(c) If the Employment Period is terminated as a result of Executive's
death, Executive and/or his estate or beneficiaries, as the case may be, shall
be entitled to receive the benefits under the Company's employee benefit
programs as in effect on the date of such termination to the extent permitted
thereunder and, in addition, shall be entitled to receive the amount of any
Annual Bonus otherwise payable to the Executive pursuant to paragraph 3(b) above
for the fiscal year in which Executive's employment is terminated, except that
the amount of any such Annual Bonus otherwise payable pursuant to this paragraph
5(b) shall be pro rated on the basis of the number of days during such fiscal
year that Executive was employed by the Company.
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(d) If the Employment Period is terminated by the Company for Cause
or if Executive resigns for any reason, or if the Employment Period is
terminated as a result of a Termination Notice delivered by Executive pursuant
to paragraph 4 above, Executive shall be entitled to receive his Base Salary
through the date of termination and the Company shall have no further liability
whatsoever to Executive.
(e) Except as otherwise expressly provided herein or as expressly
required under Section 498OB of the Internal Revenue Code of 1986, as amended,
all of Executive's rights to fringe benefits and bonuses hereunder shall cease
upon termination of the Employment Period.
6. Confidential Information; Nonsolicitation.
(a) Executive agrees to execute on the date hereof and to be bound as
of the date hereof by the terms of the Company's form of confidentiality
agreement attached hereto as Exhibit A.
(b) Executive agrees that until the date which is one year after the
termination of the Employment Period, he shall not directly, or indirectly
through another person, (i) induce or attempt to induce any employee of the
Company or any of its Subsidiaries to leave the employ of the Company or any
such Subsidiary, or in any way interfere with the relationship between the
Company or any of its Subsidiaries and any employee thereof, (ii) hire any
person who was an employee of the Company or any of its Subsidiaries at any time
during the 180-day period immediately prior to the date on which such hiring
would take place (it being conclusively presumed by the Company and Executive so
as to avoid any disputes under this paragraph 6(b) that any such hiring within
such 180-day period is in violation of clause (i) above), or (iii) call on,
solicit or service any customer, supplier, licensee, licensor or other business
relation of the Company or any of its Subsidiaries in order to induce or attempt
to induce such Person to cease doing business with the Company or such
Subsidiary. In addition, during the Employment Period and thereafter, Executive
shall not in any way interfere with the relationship between any such customer,
supplier, licensee or business relation and the Company or any of its
Subsidiaries (including making any negative statements or communications about
the Company or any of its Subsidiaries).
7. Company's Ownership of Intellectual Property.
(a) Executive acknowledges that all Work Product is the exclusive
property of the Company. Executive hereby assigns all right, title and interest
in and to such Work Product to the Company. Any copyrightable work prepared in
whole or in part by Executive will be deemed "a work made for hire" under
section 201(b) of the 1976 Copyright Act, and the Company shall own all of the
rights comprised in the copyright therein.
(b) The Company and the Executive each acknowledge the applicability
of Section 2870 of the California Labor Code. Accordingly, the provisions of
paragraph 7(a) shall not apply to, and the term "Work Product" shall not
include, any invention that Executive developed
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entirely on his own time without using the Company's equipment, supplies,
facilities, or trade secret information except for those inventions that either:
(i) relate at the time of conception or reduction to practice of the invention
to the Company's or any Subsidiaries business, or to the actual or demonstrably
anticipated research or development of the Company or any Subsidiary; or (ii)
result from any work performed by Executive for the Company or any Subsidiary.
Set forth on the attached "Excluded Inventions Schedule" are the inventions
Executive believes meet the criteria for the exclusions set forth above.
Executive agrees to promptly advise the Company in writing of any inventions
developed after the Effective Date which Executive believes meet the criteria
for exclusion set forth above.
(c) Executive shall promptly and fully disclose all Work Product to
the Company and shall cooperate and perform all actions reasonably requested by
the Company (whether during or after the Employment Period) to establish,
confirm and protect that Company's right, title and interest in such Work
Product. Without limiting the generality of the foregoing, Executive agrees to
assist the Company, at the Company's expense, to secure the Company's rights in
the Work Product in any and all countries, including the execution of all
applications and all other instruments and documents which the Company shall
deem necessary in order to apply for and obtain rights in such Work Product and
in order to assign and convey to the Company the sole and exclusive right, title
and interest in and to such Work Product. If the Company is unable because of
Executive's mental or physical incapacity or for any other reason (including
Executive's refusal to do so after request therefor is made by the Company) to
secure Executive's signature to apply for or to pursue any application for any
United States or foreign patents or copyright registrations covering Work
Product belonging to or assigned to the Company pursuant to paragraph 7(a)
above, then Executive hereby irrevocably designates and appoints the Company and
its duly authorized officers and agents as Executive's agent and attorney-in-
fact to act for an in Executive's behalf and stead to execute and file any such
applications and to do all other lawfully permitted acts to further the
prosecution and issuance of patents or copyright registrations thereon with the
same legal force and effect as if executed by Executive. Executive agrees not to
apply for or pursue any applications for any United States or foreign patents or
copyright registrations covering any Work Product other than pursuant to this
paragraph in circumstances where such patents or copyright registrations are or
have been or are required to be assigned to the Company.
8. Delivery of Materials Upon Termination of Employment. As
requested by the Company upon termination of Executive's employment with the
Company for any reason, Executive shall promptly deliver to the Company all
copies and embodiments, in whatever form, of all Confidential Information and
Work Product in Executive's possession or within his control irrespective of the
location or form of such material and, if requested by the Company , shall
provide the Company with written conformation that all such materials have been
delivered to the Company.
9. Subsequent Inventions. Executive understands and agrees that all
Intellectual Property Rights made, conceived, developed, or reduced to practice
by Executive, either alone or jointly with others, shall be disclosed to the
Company by the Executive for six (6) months following the termination of the
Employment Period. Employee further agrees that all Intellectual Property Rights
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made, conceived, developed, or reduced to practice within six (6) months
following such termination shall be presumed to have been conceived during
Executive's employment with the Company and with the use of the Company
Confidential Information, but such presumption may be overcome by Executive by a
showing that such Intellectual Property Rights were conceived after the
Employment Period and without the use of any such Confidential Information. In
the event Executive is not able to rebut such presumption and prove that such
Intellectual Property Rights were conceived after the Employment Period and
without the use of Confidential Information, Executive agrees to assign all
right, title and interest in such Intellectual Property Rights to the Company.
10. Disclosure. Following the termination of the Employment Period,
Executive shall communicate the restrictions contained in this Agreement to any
Person he intends to be employed by, provide consulting services to or otherwise
represent. Executive hereby consents to the Company's communication of the
restrictions contained in this Agreement to any such Person.
11. Enforcement; Remedies.
(a) If, at the time of enforcement of the covenants contained in
paragraph 6, 7, 8, 9, or 10 (the "Protective Covenants"), a court shall hold
that the duration or scope stated therein are unreasonable under circumstances
then existing, the parties hereto agree that the maximum duration or scope
reasonable under such circumstances shall be substituted for the stated duration
or scope and that the court shall be allowed to revise the restrictions
contained therein to cover the maximum period or scope permitted by law.
Executive has consulted legal consul regarding the Protective Covenants and
based on such consultation has determined and hereby acknowledges that the
Protective Covenants are reasonable in terms of duration and scope and are
necessary to protect the goodwill of the Company's business and the Confidential
Information.
(b) If Executive breaches, or threatens to commit a breach of, any of
the Protective Covenants, the Company shall have following rights and remedies,
each of which rights and remedies shall be independent of the others and
severally enforceable, and each of which is in addition to, and not in lieu of,
any other rights and remedies available to the Company at law or in equity:
(i) the right and remedy to have the Protective Covenants
specifically enforced by any court of competent jurisdiction (without
the need to post a bond or other security), it being agreed that any
breach or threatened breach of the Protective Covenants would cause
irreparable injury to the Company and that money damages would not
provide an adequate remedy to the Company; and
(ii) the right and remedy to require Executive to account for
and pay over to the Company any profits, monies, accruals, increments
or other benefits derived or received by Executive as the result of any
transaction(s) constituting a breach of the Protective Covenants.
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(c) In the event of any breach or violation by Executive of any of
the Protective Covenants, the time period of such covenant with respect to
Executive (to the extent such covenant is limited in duration) shall be tolled
until such breach or violation is resolved.
12. Loss of Severance due to Competition.
(a) The Executive shall not during the Employment Period and during
the period Executive is receiving any Severance Payment pursuant to paragraph
5(a) (the "Noncompete Period"), for himself or on behalf of any other person,
firm, partnership, corporation, or other entity, engage, directly or indirectly,
either as an officer, director, employee, partner, consultant, individual
proprietor, agent, or otherwise (including, but not limited to, as an owner or
shareholder), in any business which (A) provides telecommunication services of
the type provided during the Employment Period by the Company and any of its
subsidiaries (including, without limitation, (i) switched local service, (ii)
switched long-distance service, (iii) dedicated transport services, (iv) co-
locate and interconnect services and (v) data switched services and including,
without limitation, telecommunication services of the type provided by the
Company and any of its Subsidiaries to information service providers) or (B)
provides services of the type which the Company and any of its Subsidiaries have
taken significant actions during the Employment Period to begin providing or of
the type the Company or any of its Subsidiaries have indicated that they plan to
begin providing in any business plan or similar document delivered to Executive
during the Employment Period, in each case within any of the Restricted
Territories (as defined below); provided that the restrictions set forth in this
paragraph 12 shall not prohibit Executive from being a passive owner of not more
than 5% of the outstanding stock of any class corporation which is publicly
traded; and provided further that the restrictions set forth in this paragraph
12 shall not restrict the activities of Executive to the extent Executive has
received the consent of the Board to such activities.
(b) For the purpose of this Agreement, "Restricted Territories" shall
mean (i) the counties (or similar jurisdictions) in the states of Arizona,
California, Colorado, Idaho, Nevada, New Mexico, Oregon, Texas, Utah and
Washington, the province of British Columbia, Canada and the territories and
jurisdictions of Mexico and (ii) any other jurisdictions in which the Company or
its Subsidiaries are engaged in business during the Employment Period. Executive
acknowledges that the business of the Company is contemplated to be conducted in
the Jurisdictions set forth in subparagraph 12(b)(i) (including as the same
relates to the production, promotion, marketing and sale of its products and
services), and that the geographic restrictions set forth above are reasonable
and necessary to the protect the goodwill of the Company's business.
(c) If Executive breaches any of the provisions of this paragraph 12,
Executive and Company acknowledge and agree that the Company's sole remedy for
such breach shall be termination of the Severance Payments otherwise payable to
Executive pursuant to paragraph 5(a) hereof.
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13. Executive's Representations. Executive hereby represents and
warrants to the Company that (a) the execution, delivery and performance of this
Agreement by Executive do not and shall not conflict with, breach, violate or
cause a default under any contract, agreement, instrument, order, judgement or
decree to which Executive is a party or by which he is bound, (b) Executive is
not a party to or bound by any employment agreement, noncompete agreement or
confidentiality agreement with any other person or entity, and (c) upon the
execution and delivery of this Agreement by the Company, this Agreement shall be
the valid and binding obligation of Executive, enforceable in accordance with
its terms. Executive hereby acknowledges and represents that he has consulted
with independent legal consul regarding his rights and obligations under this
Agreement and that he fully understands the terms and conditions contained
herein.
14. Definitions.
"Affiliate" of any particular Person means any other Person
controlling, controlled by or under common control with such particular Person,
where "control" means the possession, directly or indirectly, of the power to
direct the management and policies of a Person whether through ownership of
voting securities, contract or otherwise.
"Cause" means (A) Executive's theft or embezzlement, or attempted
theft or embezzlement, of money or property of the Company or any of its
Affiliates, Executive's perpetration or attempted perpetration of fraud, or
Executive's participation in a fraud or attempted fraud, on the Company or any
of its Affiliates or Executive's unauthorized appropriation of, or Executive's
attempt to misappropriate, any tangible or intangible assets or property of the
Company or any of its Affiliates; (B) Executive's conviction for commission of a
felony or conviction for any crime involving acts which tend to insult or offend
community moral standards or public decency or that materially and adversely
affect the reputation of business activities of the Company or its Affiliates;
(C) Executive's substance abuse, including abuse of alcohol or use of illegal
narcotics, or other illegal drugs or substances, for which Executive fails to
undertake and maintain treatment within 15 days after requested by the
Corporation; (D) Executive's refusal to carry out the lawful instructions of the
Company's Chief Executive Officer or Executive Vice President - Technology and
Network Operations following receipt of written notice of such instructions from
the Chief Executive Officer; or (E) Executive's material breach of any
provisions of this Agreement which is incapable of cure or which is not cured
within 15 days after written notice thereof to Executive.
"Confidential Information" means all information of a confidential or
proprietary nature (whether or not specifically labeled or identified as
"confidential"), in any form or medium, that is or was disclosed to, or
developed or learned by, Executive in connection with Executive's prior
relationship with the Company or during Employment Period and that relates to
the business, products, services, research or development of the Company or its
suppliers, distributors or customers. Confidential Information includes but is
not limited to the following: (i) internal business information (including
information relating to strategic and staffing plans and practices, business,
training, marketing, promtional and sales planes and practices, cost, rate and
pricing structures and accounting and business methods); (ii) identities of,
individual requirements of,
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specific contractual arrangements with, and information about, the Company's
suppliers, distributors and customers and their confidential information; (iii)
trade secrets, know-how, compilations of data and analyses, techniques, systems,
formulae, research, records, reports, manuals, documentation, models, data and
data bases relating thereto; and (iv) inventions, innovations, improvements,
developments, methods, designs, analyses, drawings, reports and all similar or
related information (whether or not patentable). Confidential information shall
not include information that Executive can demonstrate: (a) is publicly known
through no wrongful act or breach of obligation of confidentiality; (b) was
lawfully known to Executive prior to the time Executive began rendering services
to the Company and its predecessors; or (c) was rightfully received by Executive
from a third party without a breach of any obligation of confidentiality by such
third party.
"Disability" means the inability, due to illness, accident, injury,
physical or mental incapacity or other disability, of Executive to carry out
effectively his duties and obligations to the Company or to participate
effectively and actively in the management of the Company for a period of at
least 60 consecutive days or for shorter periods aggregating at least 120 days
(whether or not consecutive) during any twelve-month period, as determined in
the reasonable good faith judgement of the Board.
Intellectual Property Rights" means all inventions, innovations,
improvements, developments, methods, processes, designs, analysis, drawings,
reports and all similar or related information (whether or not patentable or
reduced to practice) and any copyright work, trade xxxx, trade secret or other
intellectual property rights which relate to the Company's or any of its
Subsidiaries' actual or anticipated business.
"Merger Agreement" means that certain Agreement and Plan of Merger,
dated as of the date hereof, by and among the Company, Executive and the other
parties signatory thereto, as amended and modified from time to time in
accordance with its terms.
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Subsidiary" means, with respect to any Person, any corporation,
limited liability company, partnership, association or other business entity of
which (i) if a corporation, a majority of the total voting power of shares of
stock entitled (without regard to the occurrence of any contingency) to vote in
the election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by the that Person or one or more of the
other Subsidiaries of that Person or a combination there of, or (ii) if a
limited liability company, partnership, association or other business entity, a
majority of the partnership or other similar ownership interest thereof is at
the time owned or controlled, directly or indirectly, by that Person or one or
more Subsidiaries of that Person or a combination thereof. For purposes hereof,
a Person or Persons shall be deemed to have a majority ownership interest in a
limited liability company, partnership, association or other business entity if
such Person or Persons shall allocated a majority of limited liability company,
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partnership, association or other business entity gains and losses or shall be
or control any managing director or general partner of such limited liability
company, partnership, association or other business entity.
"Work Product" means all inventions, innovations, improvements,
developments, methods, processes, designs, analysis, drawings, reports, research
and development of existing or future products or service which were or are
conceived, reduced to practice, contributed to or developed or made by Executive
(whether alone or jointly with others) while employed (both before and after the
Effective Date) by the Company (or its predecessors, successors or assigns) and
it's Subsidiaries and all similar or related information (whether or not
patentable or reduced to practice) and any copyrightable work, trade xxxx, trade
secret or other intellectual property rights, any of which relate to the
Company's or any of its Subsidiaries' actual or anticipated business.
15. Survival". The provisions set forth in paragraph 5 through 24 of
this Agreement shall survive and continue in full force and effect in accordance
with their terms notwithstanding any termination of the Employment Period.
16. "Notices". Any notice provided for in this Agreement shall be
deemed to have been given when delivered personally to the recipient, sent to
the recipient by the reputable express courier (charges prepaid), telecopied
(with hard copy to follow) or mailed to the recipient by certified or registered
mail, return receipt requested and postage prepaid. Such notice will be sent to
Executive or to the Company at the address set forth below:
Notices to Executive:
---------------------
Xxxxxx X. Xxxxx
0000 Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices to the Company:
-----------------------
Pac-West Telecomm, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement shall be deemed to have been given when so delivered
or mailed.
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17. Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such a manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not effect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
18. Complete Agreement. This Agreement embodies the complete
agreement and understanding among the parties and supersedes and preempts any
prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way.
19. No Strict Construction. The language used in this Agreement shall
be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction shall be applied against any
party. The use of the word "including" herein shall mean "including without
limitation."
20. Counterparts. This Agreement may be executed in separate
counterparts (including by means of telecopies signature pages), each of which
is deemed to be an original and all of which taken together constitute one and
the same agreement.
21. Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of and be enforceable by Executive, the Company and
their respective heirs, successors and assigns, except that Executive may not
assign his rights or delegate his obligations hereunder without the prior
written consent of the company.
22. Choice of Law. All issues and questions concerning the
construction, validity, enforcement and interpretation of this Agreement and any
schedules shall be governed by, and construed in accordance with, the laws of
the State of California, without giving effect to any choice of law or conflict
of law rules or provisions (whether of the State of California, or any other
jurisdiction) that would cause the application of the laws of any jurisdiction
other than the State of California.
23. Consent to Personal Jurisdiction. Executive hereby expressly
consents to the nonexclusive personal jurisdiction and venue of the state and
federal courts located in the federal Northern District of California for any
lawsuit filed against Executive by the Company arising from or relating to this
Agreement.
24. Amendment and Waiver. The provisions of this Agreement may be
amended or waived only with the prior written consent of the Company and
Executive, and no course of conduct or failure or delay in enforcing the
provisions of this Agreement shall effect the validity, binding effect or
enforceability of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement on the date first written above.
PAC-WEST TELECOMM, INC.
By: /s/ X. X. Xxxxxxx
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Name: X. X. Xxxxxxx
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Its: President
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/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
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EXCLUDED INVENTIONS SCHEDULE
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None.
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