Exhibit 10.10
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EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement (the "Agreement"), effective as of the
Effective Date (as defined below), is made and entered into between Barter
Acquisition Corporation ("Employer" or the "Corporation"), a Delaware
corporation having its principal office at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and ________________("Executive"), an individual
residing _______________________________.
WHEREAS, Employer wishes to employ Executive and Executive wishes to accept
such employment on the terms and conditions set forth herein; and
WHEREAS, Employer has entered into the Agreement and Plan of Merger dated
as of May 14, 2000, by and among Employer, Choice One Communications Inc.
("Acquiror"), US Xchange, Inc. ("US Xchange") and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Pol (the
"Merger Agreement").
NOW, THEREFORE, in consideration of the mutual promises, benefits and
covenants herein contained, Employer and Executive hereby agree as follows:
1. Effective Date; Term.
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1.1 Effective Date. This Agreement shall be effective commencing on the
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closing date of the Merger (the "Effective Date"). In the event the Merger
Agreement is terminated or the transactions contemplated therein are otherwise
abandoned, this Agreement shall be void.
1.2 Employment Term. Employer employs Executive, and Executive accepts
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such employment, for an initial period of two (2) years commencing on the
Effective Date (the "Employment Term"), and continuing thereafter at will
subject to mutual agreement of Employer and Executive.
1.3 Termination. This Agreement may be terminated prior to the expiration
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of the Employment Term as provided in Section 4 of this Agreement.
2. Scope of Employment.
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2.1 Position and Duties. During the term of this Agreement, Employer
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shall employ Executive to serve in such executive capacity as may be determined
from time to time by the Chief Executive Officer of the Corporation. In such
capacity, Executive shall perform such executive, administrative and operational
duties as may reasonably be assigned to Executive from time to time by the Chief
Executive Officer of the Corporation.
2.2 Exclusive Efforts. Executive agrees to serve Employer faithfully and
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to the best of Executive's ability and to devote Executive's entire business
time, attention and efforts to the interests and business of Employer, its
subsidiaries and their affiliates. Executive represents and warrants to Employer
that Executive is not under any contractual commitment which prohibits or limits
Executive's employment by Employer or which is inconsistent with Executive's
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obligations set forth in this Agreement. Executive agrees that during the term
of this Agreement, Executive will not perform any services for any other
corporation, firm, entity or other person without the prior written consent of
Employer and consistent with the policies and procedures of Employer in effect
from time to time.
2.3 Compliance with Laws. Executive agrees at all times to adhere
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strictly to and perform all his duties in accordance with applicable laws, rules
and regulations and the written policies and procedures of Employer in effect
from time to time.
3. Compensation, Benefits and Expenses.
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3.1 Base Salary. Except as otherwise provided in this Agreement, during
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the period beginning on the Effective Date and continuing through December 31,
2000 (the "First Year"), Employer shall pay to Executive a base salary at a rate
of $__________________per year (the "Base Salary"). The Base Salary shall
increase, and shall not decrease, annually for each successive year after the
First Year pursuant to the discretion of the Chief Executive Officer of the
Corporation for the Employment Term. Employer shall pay the Base Salary to
Executive in equal installments pursuant to Employer's standard payroll
policies, and Executive's Base Salary shall be subject to such withholding or
deductions as may be mutually agreed between Employer and Executive or as
required by law.
3.2 Bonus. In addition to the Base Salary set forth in Section 3.1,
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Executive shall receive bonuses as follows:
3.2.1 If the Employer meets or exceeds its short term incentive plan
goals, the Executive is eligible for a bonus pursuant to the Corporation's
Short Term Incentive Compensation Plan as determined by the Board of
Directors of the Corporation.
3.2.2 Employer does not guarantee that any bonus will be awarded or paid
to Executive. Payment of any bonus shall be subject to such withholding or
deductions as may be mutually agreed between Employer and Executive or as
required by law.
3.3 Fringe Benefits. During the term of this Agreement, Executive shall
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be entitled to participate in Employer's plans for the welfare, benefit,
vacations and holidays of its employees to the extent Executive satisfies the
requirements for participation in such plans.
3.4 Expenses. During the term of this Agreement, Employer authorizes
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Executive to incur reasonable and necessary out-of-pocket business expenses in
the course of performing Executive's duties and rendering services hereunder in
accordance with Employer's policies with respect thereto, and Employer shall
reimburse Executive for all such expenses, provided (i) such expenses and the
purpose for which they were incurred are in accordance with Employer's policies,
and (ii) Executive timely submits to Employer expense reports and substantiation
of the expenses in accordance with Employer's policies.
3.5 Restricted Stock Grant.
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(a) Within 5 days after the Effective Date, Acquiror will grant to
Executive [NoofShares] restricted shares of Common Stock of Acquiror (the
"Shares"), subject to the
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restrictions set forth herein. The Shares shall vest over a two-year period
beginning on the date hereof, so long as the Executive remains in the continuous
employ of the Employer during such period, with 50% of the Shares vesting on the
annual anniversary of the date of grant; provided, however, that all of the
Shares shall vest immediately upon (i) the death or Disability of such
Executive, or (ii) a Change of Control. Shares that do not become vested shall
be forfeited to the Employer without the payment of any consideration therefor.
Each share certificate granted under this Agreement shall bear a legend
indicating that it is "Restricted Stock." Each restricted Share shall not be
transferable and no interest therein may be pledged or assigned to any other
person or entity (including, without limitation, any margin loan or derivative
transaction) until the relevant date of vesting of the restricted Shares (the
"Lock-up Period") without the written consent of the Chief Executive Officer of
Acquiror. The Employer shall hold the certificate representing each Share,
together with stock powers endorsed in blank, until the expiration of the
relevant Lock-up Period and, unless otherwise agreed, the certificate will be
transferred to the Executive only after satisfaction by the Executive of all
federal, state and local income and employment tax withholding liabilities that
arise either on account of the Section 83(b) election (described below) or the
vesting of such Share.
(b) The Executive may elect pursuant to Section 83(b) of the Internal
Revenue Code, within 30 days of the date of grant, to include in his or her
gross income the fair market value of all or any portion of the Shares covered
by this Agreement in the taxable year of grant. If he or she makes this
election, the Executive shall promptly notify the Acquiror by submitting to the
Acquiror, in the manner specified by the Chief Executive Officer, a copy of the
statement filed with the Internal Revenue Service in which the Executive makes
such election.
(c) The Executive shall have all rights of a shareholder with respect to
the Shares except as otherwise limited by the terms of this Agreement.
(d) In the event of any change in the Common Stock of Acquiror by reason
of any stock dividend, stock split, split-up or any similar change affecting the
Common Stock, the number and kind of Shares awarded hereunder shall be adjusted
automatically consistent with such change.
4. Termination.
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4.1 Termination. Executive's employment by Employer pursuant to the terms
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of this Agreement shall terminate at the expiration of the Employment Term,
unless employment continues thereafter at will by mutual agreement of Employer
and Employee, and shall terminate prior to the expiration of the Employment Term
upon the occurrence of any of the following events:
4.1.1 the death of Executive;
4.1.2 the date on which Executive is determined to be Disabled (as defined
in Section 6);
4.1.3 termination by the Corporation for Cause (as defined in Section 6);
4.1.4 Executive's resignation without Good Reason (as defined in Section
6);
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4.1.5 termination by the Corporation for any reason other than Cause; or
4.1.6 Executive's resignation for Good Reason.
4.2 Time of Termination. Executive's employment with Employer shall
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terminate immediately upon Executive's death, upon the written notice of
termination from Employer or Executive upon the occurrence of an event specified
in Sections 4.1.2, 4.1.3, (which shall include a reasonably detailed description
of Cause) 4.1.4, 4.1.5, 4.1.6 (which shall include a reasonably detailed
description of Good Reason) or upon expiration of the Employment Term (as
applicable, the "Termination Date").
4.3 Effect of Termination of Employment. Following the Termination Date:
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4.3.1 Executive shall return all property of Employer as provided in
Section 5.2 (b) of this Agreement;
4.3.2 Executive's salary shall cease to accrue;
4.3.3 the Board of Directors shall determine whether to pay to Executive
any unpaid bonus or other incentive compensation for the period through the
Termination Date computed consistently with the manner in which Executive's
bonus or incentive compensation would have been determined for such period
if Executive's employment had not terminated;
4.3.4 Executive's participation in Employer's benefit plans shall cease
except as required by law or by the terms of the plan(s);
4.3.5 Executive shall cease to accrue vacation days and shall be paid for
unused vacation time accrued since the beginning of the Employment Term in
accordance with Employer's policies applicable to employees generally; and
4.3.6 Executive shall submit any claims for reimbursement of business
expenses incurred in accordance with Section 3.4 within the time period
required under Employer's policies generally or Employer will not be
obligated to reimburse such expenses.
4.4 Termination Payment under Certain Circumstances. In the event that
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Executive's employment with Employer is terminated pursuant to Section
4.1.5 or 4.1.6 prior to the expiration of the Employment Term, and
notwithstanding Section 4.3.2, Employer shall pay to Executive an amount
equal to the Base Salary which Executive would have earned during the
balance of the Employment Term subject to any withholding agreed to between
Employer and Executive or required by law, payable in equal monthly
installments for the remaining balance of the Employment Term, and the
Shares shall become fully vested. Such termination payment and vesting
shall be contingent upon compliance by Executive with the other terms and
conditions of this Agreement (including, without limitation, Section 5
hereof) and in consideration of a release, in substantially the form
attached hereto as Exhibit A, duly executed by Executive (or his legal
representatives if deceased or incompetent) waiving any rights of
Executive, his
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heirs or legal representatives to make any claims against Employer under
this Agreement and forever releasing and indemnifying Employer from and
against any further claims, demands, loss liability actions, proceedings
and expenses relating to this Agreement. Executive's participation in any
health or life insurance or retirement programs of Employer shall continue
at the expense of Executive through the period during which Executive
receives termination payments under this Section 4.4, and all other fringe
benefits shall cease on termination of Executive's employment.
5. Confidentiality, Noncompete, and Nonsolicitation.
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5.1 Nondisclosure and Nonuse of Confidential Information. Executive shall
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not disclose or use at any time, either during his employment with the
Corporation or thereafter, any Confidential Information (as defined below) of
which Executive is or becomes aware, whether or not such information is
developed by him, except to the extent that such disclosure or use is directly
related to and required by Executive's performance of duties assigned to
Executive by the Corporation or is required by law. In addition, the Executive
acknowledges that some Confidential Information will contain material, non-
public information (within the meaning of the federal securities laws) that may
remain material and non-public for an extended period of time. You are aware
that the Federal securities laws impose restrictions on trading by persons in
possession of non-public information and agree to comply with such restrictions.
Executive shall take all appropriate steps to safeguard Confidential Information
and to protect it against disclosure, misuse, espionage, loss and theft. As
used in this Agreement, the term "Confidential Information" means information
that is not generally known to the public and that is used, developed or
obtained by the Corporation in connection with their business, including but not
limited to (i) products or services, (ii) fees, costs and pricing structures,
(iii) designs, (iv) analysis, (v) drawings, photographs and reports, (vi)
computer software, including operating systems, applications and program
listings, (vii) flow charts, manuals and documentation, (viii) data bases, (ix)
accounting and business methods, (x) inventions, devices, new developments,
methods and processes, whether patentable or unpatentable and whether or not
reduced to practice, (xi) customers and clients and customer or client lists,
(xii) copyrightable works, (xiii) all technology and trade secrets, (xiv)
strategic plans, potential acquisitions, business plans, budgets and financial
models, and (xv) all similar and related information in whatever form.
Notwithstanding the foregoing, "Confidential Information" shall not include any
information (A) of which Executive became aware prior to his affiliation with
the Corporation, (B) of which Executive learns from sources other than the
Corporation or (C) which is disclosed in a prospectus or other documents for
dissemination to the public or published in a form generally available to the
public prior to the date Executive proposes to discloses or uses such
information. Information shall not be deemed to have been published merely
because individual portions of the information have been separately published,
but only if all material portions thereof have been published.
5.2 The Corporation's Ownership of Intellectual Property.
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(a)(i) Acknowledgment of Corporation Ownership. In the event that
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Executive as part of his activities on behalf of the Corporation generates,
creates, authors or contributes to any invention, design, new development,
device, product, method or process (whether or not patentable or reduced to
practice or constituting Confidential Information), any copyrightable
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work (whether or not constituting Confidential Information) or any other form of
Confidential Information relating directly or indirectly to the Corporation's
business as now or hereafter conducted (collectively, "Intellectual Property"),
Executive acknowledges that such Intellectual Property is the exclusive property
of the Corporation and hereby assigns all right, title and interest in and to
such Intellectual Property to the Corporation. 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 Corporation shall own all of
the rights comprised by the copyright therein. Executive shall promptly and
fully disclose all Intellectual Property to the Corporation and shall cooperate
with the Corporation to protect their interests in and rights to such
Intellectual Property (including, without limitation, providing reasonable
assistance in securing patent protection and copyright registrations and
executing all documents as reasonably requested by the Corporation, whether such
requests occur prior to or after termination of Executive's employment with the
Corporation).
(ii) Executive Invention. Executive understands that Section 5.2(a)(i) of
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this Agreement regarding the ownership by the Corporation of Intellectual
Property does not apply to any invention for which no equipment, supplies,
facilities or trade secret information of the Corporation were used and which
was developed entirely on Executive's own time, unless (A) the invention relates
to the business of the Corporation to any of their actual or demonstrably
anticipated research or development or (B) the invention results from any work
performed by Executive for the Corporation.
(b) Delivery of Materials upon Termination of Employment. As requested by
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the Corporation from time to time and upon the termination of Executive's
employment with the Corporation for any reason, Executive shall promptly deliver
to the Corporation all copies and embodiments, in whatever form, of all
Confidential Information and Intellectual Property in Executive's possession or
within his control (including, but not limited to, written records, notes,
photographs, manuals, notebooks, documentation, program listings, flow charts,
magnetic media, disks, diskettes, tapes and all other materials containing any
Confidential Information or Intellectual Property) irrespective of the location
or form of such material and, if requested by the Corporation, shall provide the
Corporation with written confirmation that all such materials have been
delivered to the Corporation.
5.3 Noncompete. Executive acknowledges and agrees with the Corporation
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that in the course of his employment with the Corporation, he shall become
familiar with the Corporation's trade secrets and with other Confidential
Information concerning the Corporation, that Executive's services to the
Corporation are unique in nature and of an extraordinary value to the
Corporation, and that the Corporation would be irreparably damaged if Executive
were to provide similar services to any person or entity competing with the
Corporation or engaged in a similar business. In consideration of and as an
inducement to the Corporation entering into this Agreement and granting of the
restricted Shares hereunder, Executive accordingly covenants and agrees with the
Corporation that during the Noncompete Period (as defined in Section 6.5),
Executive shall not, directly or indirectly, either for himself or for or
through any other individual, corporation, partnership, joint venture or other
entity, participate in any business or enterprise conducting or proposing to
conduct business in any Covered State (as defined below) which engages or
proposes to engage in the provision of telecommunications services or in any
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other business competitive with any business engaged in by the Corporation
during the period of time in which Executive is employed by the Corporation.
For purposes of this Agreement, (i) the term "participate in" shall
include, without limitation, having any direct or indirect interest in any
corporation, partnership, joint venture or other entity, whether as a sole
proprietor, owner, stockholder, partner, member, joint venturer, creditor or
otherwise, or rendering any direct or indirect service or assistance to any
individual, corporation, partnership, limited liability company, joint venture
or other business entity (whether as a director, officer, manager,
representative, supervisor, employee, agent, consultant or otherwise), other
than ownership of up to 2% of the outstanding stock of any class which is
publicly traded and (ii) the term "Covered State" means Connecticut, Delaware,
Illinois, Indiana, Maine, Massachusetts, Michigan, Minnesota, New Hampshire, New
Jersey, New York, Ohio, Pennsylvania, Rhode Island, Vermont and Wisconsin.
Executive agrees that this covenant is reasonable with respect to its duration,
geographical area and scope and is fully enforceable.
5.4 Nonsolicitation. During the Noncompete Period, Executive shall not
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(i) induce or attempt to induce any employee, officer or consultant of the
Corporation to leave the employ of the Corporation or in any way interfere with
the relationship between the Corporation and any employee, officer or consultant
thereof, (ii) hire directly or through another entity any person who was an
employee of the Corporation at any time during the twelve months prior to the
date such person is to be so hired (so long as the person was not terminated by
the Corporation, or (iii) induce or attempt to induce any customer, supplier,
licensee or other business relation of the Corporation to cease doing business
with the Corporation or in any way interfere with the relationship between any
such customer, supplier, licensee or business relation and the Corporation
(including, without limitation, making any negative statements or communications
concerning the Corporation).
6. Definitions
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6.1 Cause means (i) Executive's theft or embezzlement, or attempted theft
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or embezzlement, of money or property of the Corporation, Executive's
perpetration or attempted perpetration of fraud, or Executive's participation in
a fraud or attempted fraud, on the Corporation or Executive's unauthorized
appropriation of, or attempt to misappropriate, any tangible or intangible
assets or property of the Corporation, (ii) any act or acts of disloyalty,
misconduct or moral turpitude by Executive which the Board of Directors of the
Corporation determines in good faith has been or is likely to be demonstrably
injurious to the interest, property, operations, business or reputation of the
Corporation, or Executive's conviction of a crime other than minor traffic
violations or other similar minor offenses, (iii) Executive's refusal or willful
failure (other than by reason of Disability) to carry out reasonable legal and
customary instructions by his superiors or the Corporation's Board of Directors
or (iv) Executive's breach of any provision set forth in Section 5 of this
Agreement.
6.2 Change of Control means a transaction or series of related
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transactions which results in a change of economic beneficial ownership of
Employer or its business of greater than 50%, whether pursuant to the sale of
the stock of Employer, the sale of all or substantially all of the assets of
Employer, or a merger or consolidation in which Employer is the surviving
entity; provided that (i) the purchase or sale of capital stock of Acquiror by
any stockholder of Acquiror who currently holds more than 5% of the outstanding
shares of common
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stock of Acquiror, and (ii) the purchase or sale of capital stock of Acquiror
which does not result in any entity and its affiliates, collectively,
beneficially owning more than 50% of the outstanding shares of common stock of
Acquiror, shall be disregarded when determining whether a Change of Control has
occurred.
6.3 Disabled or Disability means (i) any permanent physical or mental
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incapacity or disability rendering the Executive unable or unfit to perform
effectively the duties and obligations of his employment or to participate
effectively and actively in the management of the Corporation, or (ii) any
illness, accident, injury, physical or mental incapacity or other disability,
where such condition has rendered the Executive unable or unfit to perform
effectively the duties and obligations of his employment or to participate
effectively and actively in the management of the Corporation for a period of at
least 90 consecutive days or four months in any twelve-month period (in either
case, as determined in the good faith judgment of the Board of Directors of the
Corporation).
6.4 Good Reason means, without the written consent of Executive (i) a
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material diminution in, or material adverse change to, Executive's duties
relative to his duties in effect immediately prior to the Effective Date or
other duties described to Executive by Employer prior to the Effective Date,
(ii) a relocation of Executive's principal place of business to a location more
than 50 miles from the location as of the Effective Date, (iii) any failure to
pay or provide any item of compensation or benefits promptly when due or (iv)
any other material breach of this Agreement by the Corporation; provided that,
in each case, Executive has notified Employer within 30 days after the
occurrence of such event specifying the reason(s) why the Executive believes
such event constitutes Good Reason.
6.5 Noncompete Period means the Employment Term and a two year period
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after the Termination Date; provided, however, that, in the event of a
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termination of Executive's employment pursuant to Section 4.1.5 or 4.1.6, the
Noncompete Period shall survive for only so long as payments are being made by
the Employer to Executive pursuant to Section 4.4.
6.6 Subsidiary means, with respect to any person, any corporation, limited
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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 that person or one or more of the other
Subsidiaries of that person or a combination thereof, or (ii) if a limited
liability company, partnership, association or other business entity that is not
a corporation 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 be allocated a majority of
limited liability company, partnership, association or other business entity
gains or losses or shall be or control any managing director, managing member,
manager or general partner of such limited liability company, partnership,
association or other business entity.
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7. Miscellaneous.
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7.1 Release. Except for Shares which may be granted pursuant to Section
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3.5 hereof, Executive forever releases and discharges US Xchange, Barter
Acquisition Corporation and their respective directors, officers, employees,
shareholders or affiliates from any and all agreements, claims, damages and
demands whatsoever that Executive may assert against such persons, or any of
them, with regard to any option or any right to acquire capital stock of, or any
equity, phantom stock or similar interest in, US Xchange or any of its
affiliates.
7.2 Remedies. Each of the parties hereto shall have all rights and
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remedies set forth in this Agreement. All remedies hereunder are cumulative and
are not exclusive of any other remedies provided by law or any other agreement
or contract to which such person is a party. Each party shall be entitled to
enforce such rights specifically (without the requirement of posting a bond or
other security), to recover damages by reason of any breach of any provision of
this Agreement and to exercise all other rights granted by law. Without
limiting the generality of the foregoing, Executive specifically agrees that any
breach or threatened breach of Sections 5 or 7 would cause irreparable injury to
Employer, that money damages would not provide an adequate remedy to Employer,
and that Employer shall accordingly have the right and remedy (i) to obtain an
injunction prohibiting Executive from violating or threatening to violate such
provisions, (ii) to have such provisions specifically enforced by any court of
competent jurisdiction, and (iii) to require Executive to account for and pay
over to Employer all compensation, profits, monies, accruals, increments or
other benefits derived or received by Executive as the result of any
transactions constituting a breach of such provisions.
7.3 Entire Agreement; Amendments and Waivers. This Agreement (including
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the schedule hereto) represents the entire understanding and agreement between
the parties hereto with respect to the subject matter hereof and can be amended,
supplemented or changed, and any provision hereof can be waived, only by a
written instrument making specific reference to this Agreement signed by the
party against whom enforcement of any such amendment, supplement, modification
or waiver is sought. The waiver by any party hereto of a breach of any
provision of this Agreement shall not operate or be construed as a further or
continuing waiver of such breach or as a waiver of any other or subsequent
breach. No failure on the part of any party to exercise, and no delay in
exercising, any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of such right, power or remedy
by such party preclude any other or further exercise thereof or the exercise of
any other right, power or remedy.
7.4 Governing Law. This Agreement shall be governed by, and construed in
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accordance with, the laws of the State of New York without reference to its
principles of conflicts of law. Each of the parties hereto irrevocably submits
to the exclusive jurisdiction of the courts of the State of New York and the
Federal Courts of the United States of America located in the State of New York,
for the purposes of any suit, action or other proceeding arising out of this
Agreement or any transaction contemplated hereby.
7.5 Notices. All notices, demands, solicitations of consent or approval,
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and other communications hereunder shall be in writing and shall be delivered
personally, mailed, sent by telefax or sent by recognized commercial courier
(e.g., Federal Express). If delivered personally, such notice shall be deemed
to be given when delivered to the intended recipient. If delivered by
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mail, such notice shall be deemed to be given five (5) days after having been
deposited in the United States mail so addressed, with postage thereon prepaid.
If delivered by telefax, such notice shall be deemed given when transmission of
the notice is complete to the telefax number of the other party. If delivered by
recognized commercial carrier, such notice shall be deemed given one (1) day
after having been delivered to a recognized commercial carrier for overnight
delivery. All such notices shall be addressed to the address set forth in the
preamble to this Agreement or to such other address which such party shall have
given to the other party for such purpose by notice hereunder.
7.6 Captions. The headings used in this Agreement are intended for
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reference purposes only and shall not control or affect in any manner the
meaning or interpretation of any of the provisions of is Agreement.
7.7 Severability. The invalidity or unenforceability of any provision of
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this Agreement shall not affect the validity or enforceability of the remaining
provisions of this Agreement, and this Agreement shall be construed in all
respects as if such invalid or unenforceable provision were omitted. All
provisions of this Agreement shall be enforced to the full extent permitted by
law.
7.8 Interpretation. The parties acknowledge and agree that: (i) each
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party and its counsel reviewed and negotiated the terms and provisions of this
Agreement and have contributed to its revision; (ii) the rule of construction to
the effect that any ambiguities are resolved against the drafting party shall
not be employed in the interpretation of this Agreement; and (iii) the terms and
provisions of this Agreement shall be construed fairly as to all parties hereto,
regardless of which party was generally responsible for the preparation of this
Agreement.
7.9 Counterparts. This Agreement may be executed in any number of copies,
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each of which shall be deemed an original, and all of which together will be
deemed one and the same instrument.
7.10 Successors and Assigns. All covenants and agreements contained in
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this Agreement by or on behalf of any of the parties hereto shall bind, and
inure to the benefit of the respective successors and permitted assigns of the
parties hereto whether so expressed or not. Neither party shall transfer or
assign this Agreement or any of their rights or obligations hereunder, whether
by operation of law or otherwise, without the prior written consent of the other
party hereto. Any attempted transfer or assignment of this Agreement or any
rights or obligations hereunder in violation of this provision shall be void ab
initio.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date(s) set forth below.
BARTER ACQUISITION CORPORATION
By: ___________________________________
Name: ___________________________________
Title: ___________________________________
Date: ___________________________________
EXECUTIVE
_________________________________________
Date: ____________________________________
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EXHIBIT A
[Form of] RELEASE AGREEMENT
(a) In consideration for the Company's promise to provide the restricted stock,
compensation and benefits set forth in the Executive Employment Agreement
by and between (_______________) ("Employee") and Barter Acquisition
Corporation, (the "Company"), the terms of which are incorporated herein by
this reference (the "Employment Agreement"), Employee irrevocably and
unconditionally releases the Company, its subsidiaries and affiliates,
together with all of their employees, directors, shareholders, officers,
agents, representatives, unfunded benefit plans, successors, assigns, and
all persons acting by, through or in concert with any of them
(collectively, the "Releasees") from any and all charges, liabilities,
damages or causes of action (including attorney's fees and costs actually
incurred) of any nature whatsoever, including, but not limited to, claims
under Federal, state or local laws prohibiting any form of discrimination,
including without limitation, discrimination on the basis of age, as
prohibited by the Age Discrimination in Employment Act, which Employee has,
owns or holds against any of the Releasees, known or unknown, as of the
date Employee signs this Release Agreement. Employee further agrees that
Employee will not file, or permit to be filed in Employee's name or on
Employee's behalf, any lawsuit, claim or other legal action against any
Releasees and waives irrevocably any right to recover under any claim that
may be filed by the Equal Employment Opportunity Commission with respect to
Employee's employment with the Company and termination of that employment.
(b) Employee represents and acknowledges that Employee has been given a period
of twenty-one (21) days to consider this Release Agreement and that
Employee has read this Agreement, understands the terms of this Agreement
and has been given an opportunity to ask questions of the Company's
representatives. Employee has been advised to consult with an attorney
prior to signing this Agreement whether Employee chooses to do so is his or
her decision. Employee represents that he or she has not filed a complaint
against the Company or any other Releasee with any court or administrative
tribunal before signing this Agreement. Employee further represents that
in signing this Agreement, Employee does not rely, and has not relied, on
any representation or statement not set forth in this Agreement made by any
representatives of the Company or any other Releasee with regard to the
subject matter, basis or effect of this Agreement or otherwise. This
Agreement sets forth the entire agreement between the parties, and fully
supersedes any and all prior agreements or understandings between the
parties pertaining to the subject matter hereof.
(c) This Release Agreement is knowingly and voluntarily entered into by all
parties.
(d) For a period of seven (7) days after the date Employee signs this Release
Agreement, Employee has the right to revoke the Release Agreement by
delivering written notice of revocation to the Chief Executive Officer,
____________, ____________, ____________,____________ prior to the close of
business (5:00 p.m.), on the seventh day following the date on which
Employee signs this Agreement. The Employment
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Agreement shall not be effective or enforceable, and Employee shall not be
entitled to the benefits payable thereunder, unless and until seven (7)
days have elapsed from the date Employee signs this Release Agreement and
Employee has not revoked this Agreement during that seven (7) day period.
(e) This Release Agreement shall be governed by and construed in accordance
with the laws of the State of New York without reference to its choice of
law rules. The provisions of this Agreement are severable and if any part
of it is found to be unenforceable, the other provisions shall remain fully
valid and enforceable.
EMPLOYEE ___________________________________
Signature: _________________________________
Name: ______________________________________
Date: ______________________________________
BARTER ACQUISITION CORPORATION
By: ________________________________________
Date: ______________________________________
This Release Agreement shall not be valid unless executed by each party on or
after ( ).
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Schedule to Exhibit 10.10
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Nine former executive employees of US Xchange Inc. have received and executed
this Employment Agreement with different salaries and different numbers of
shares of restricted stock pursuant to their individual agreements.