EXHIBIT 10.1
SEVERANCE AND CONSULTING AGREEMENT
----------------------------------
THIS SEVERANCE AND CONSULTING AGREEMENT, dated April 22, 1997 (the
"Agreement"), is entered into by and between View Tech, Inc., a Delaware
corporation with its principal place of business in Camarillo, California (the
"Company"), and John W. Hammon (the "Executive").
WHEREAS, the Executive has been in the employ of the Company as its
Chief Operating Officer and President since the Company's inception;
WHEREAS, the Executive possesses an intimate knowledge of the business
and affairs of the Company and its policies, procedures, methods and personnel;
WHEREAS, the parties wish to settle the terms of the severance of
their employment relationship and any and all disputes which exist or could
exist between them;
WHEREAS, the parties wish to continue their association for a specific
period during which the Executive shall perform services as a consultant for the
Company;
WHEREAS, the Company and the Executive have determined that it is in
their respective best interests to enter into this Agreement on the terms and
conditions as set forth herein;
NOW, THEREFORE, in consideration of the promises and of the mutual
covenants contained herein, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1. Severance of Employment Relationship; Resignation from Board.
------------------------------------------------------------
(a) The Executive confirms, by executing this Agreement, that he
has resigned his employment as President and Chief Operating Officer with the
Company, effective April 17, 1997.
(b) The Executive shall receive by April 21, 1997 all
compensation and benefits earned but unpaid as of that date, including all
accrued unused vacation.
(c) On or before April 21, 1997, the Executive shall return to
the Company all of the Company's property in his possession, including, but not
limited to, the Company's cellular phone and credit card that he possessed
during his employment.
(d) The Executive is currently a member of the Company's Board
of Directors (the "Board"). The Executive, by executing this Agreement, hereby
resigns his
1
position on the Board, effective May 20, 1997. The Executive shall also take all
other actions necessary to accomplish his resignation from the Board effective
May 20, 1997.
(e) The parties shall agree on the contents of a statement to be
released to the press regarding the existence and terms of this Agreement.
2. Consulting Services.
-------------------
(a) Consulting Period. The Company and the Executive hereby
-----------------
agree that beginning on the effective date of the Executive's resignation as
President and Chief Operating Officer (the "Consulting Commencement Date"), the
Company shall retain the services of the Executive to provide advisory and
consulting services to the Company (as set forth below) for the period
commencing on the Consulting Commencement Date until December 31, 1998 (the
"Consulting Period").
(b) Consulting Services; Fee; Attorneys' Fees Reimbursement. The
-------------------------------------------------------
advisory and consulting services to be provided by the Executive pursuant to
this Section 2 shall be rendered on a non-exclusive basis at such times and at
such locations as shall be required by the Company. The Executive agrees to be
available, upon request and at all reasonable times (and upon reasonable
notice), to the Company's Chief Executive Officer for consultation and advice on
matters relating to the business of the Company for at least 16 hours during
each week during the Consulting Period. The Executive shall be paid the sum of
$19,335 per month for his services during the Consulting Period (the "Consulting
Fee"). The Consulting Fee shall be payable in equal installments (except for the
first payment which may be prorated based upon the number of days covered by the
Consulting Period) with the same frequency as the Company pays its salaried
employees, as such payment periods are in effect from time to time in accordance
with Company policy. During the Consulting Period, the Company shall reimburse
the Executive for all pre-approved normal and reasonable business expenses
incurred by him at the request of the Company for which appropriate
documentation is provided to the Company but will not reimburse the Executive
for country club dues and other personal expenses. During the Consulting Period,
the Consulting Fee shall constitute the Executive's entire compensation, and he
shall not be eligible for bonuses or increases in compensation paid to
employees. The Company shall also pay to the Executive's counsel, Heller Ehrman
White & McAuliffe, the sum of two thousand five hundred dollars ($2,500.00)
within thirty (30) days of the Executive's execution of this Agreement as a
partial reimbursement of the Executive's legal fees incurred in connection with
the negotiation and preparation of this Agreement. This payment shall represent
the Company's sole obligation with respect to the payment of the Executive's
legal fees except as may be provided for by Section 6.14 below.
(c) Health Insurance. The Company shall provide the Executive
----------------
with all notices required under federal and state law upon his resignation
regarding continuation of group health coverage and shall reimburse the
Executive on a monthly basis for the premiums paid by the Executive to obtain
such coverage for a period of 18 months
2
after his resignation, or until he is no longer eligible for continuation
coverage, whichever is earlier. For the balance of the Consulting Period, the
Company shall reimburse the Executive for the premiums paid in connection with a
health insurance policy obtained by the Executive providing comparable levels of
benefits to those provided for under the Company's group health plan applying to
senior executives at the commencement of the Consulting Period.
(d) Stock Option Agreements. The parties have entered into three
-----------------------
agreements, dated June 12, 1996, July 17, 1995 and October 3, 1994,
respectively, granting options to the Executive for the purchase of shares in
the Company (the "Stock Option Agreements"). The Company maintains a Stock
Option Plan that governs the grant of such options. True and correct copies of
the Company's Stock Option Plan, as amended, and the Stock Option Agreements are
attached hereto as Appendix A. Under the terms of the plan under which the Stock
Option Agreements were agreed to, the Executive's option to purchase certain
shares of Company common stock expires ninety (90) days after the termination of
the parties' relationship. The parties agree that the Executive's resignation as
President and Chief Operating Officer and continued retention as consultant
pursuant to the terms of this Agreement shall not be deemed to be a termination
of the parties' relationship for purposes of the Stock Option Agreements and the
option period applicable to the Stock Option Agreements.
(e) Officer Receivable. The Executive has a balance of
------------------
approximately twenty six thousand three hundred dollars ($26,300) on his advance
account at the Company (the "Officer Receivable") that is due and owing to the
Company. The parties agree that the Officer Receivable shall be reduced by the
amount of properly documented business expense claims submitted by the Executive
to the Company, including those relating to a European business trip undertaken
by the Executive during his employment with the Company. The Executive shall
submit these expense claims to the Company no later than thirty (30) days after
his execution of this Agreement. The amount of the Officer Receivable remaining
after it has been reduced by the amount of proper business expenses submitted by
the Executive shall be deducted in equal installments from each payment of the
Consulting Fee until the Officer Receivable is entirely paid upon the expiration
of the Consulting Period.
3. Executive Covenants.
-------------------
3.1 Unauthorized Disclosure. (a) The Executive agrees and
-----------------------
understands that due to the Executive's position with the Company, both prior
and subsequent to the date of this Agreement, the Executive has been and will be
exposed to, and has received and will receive, confidential and proprietary
information of the Company or relating to the Company's business or affairs that
constitute trade secrets as defined by the Uniform Trade Secrets Act, California
Civil Code (S) 3426, et seq. (collectively, the "Trade Secrets"), including but
not limited to technical information, product information and formulae,
processes, business and marketing plans, strategies, customer information, other
information concerning the Company's products, promotions, development,
financing,
3
expansion plans, business policies and practices and other forms of information
considered by the Company to be proprietary and confidential and in the nature
of trade secrets. Except to the extent that the proper performance of the
Executive's duties, services and responsibilities hereunder may require
disclosure, and except as such information (i) was known to the Executive prior
to his employment by the Company (including, without limitation, his employment
by the Company prior to the date of this Agreement) or (ii) was or becomes
generally available to the public other than as a result of a disclosure by the
Executive in violation of the provisions of this Section 3.1(a), the Executive
agrees that during the balance of his employment and during the Consulting
Period and at all times thereafter the Executive will keep such Trade Secrets
confidential and will not disclose such information, either directly or
indirectly, to any third person or entity without the prior written consent of
the Company. This confidentiality covenant has no temporal, geographical or
territorial restriction. On the Consulting Commencement Date, the Executive will
promptly supply to the Company all property, keys, notes, memoranda, writings,
lists, files, reports, customer lists, correspondence, tapes, disks, cards,
surveys, maps, logs, machines, technical data, formulae or any other tangible
product or document, and any and all copies, duplicates or reproductions
thereof, which has been produced by, received by or otherwise submitted to the
Executive in the course of his employment with the Company.
(b) Inventions. (i) The Executive agrees that any and all
----------
inventions, discoveries, improvements processes, formulae, business application
software, patents, copyrights and trademarks made, developed, discovered or
acquired by him prior to and during his employment or the Consulting Period,
solely or jointly with others or otherwise, which relate to the business of the
Company and all knowledge possessed by the Executive relating thereto
(collectively, the "Inventions"), shall be fully and promptly disclosed to the
Board of Directors and to such person or persons as the Board of Directors shall
direct and shall be the sole and absolute property of the Company and the
Company shall be the sole and absolute owner thereof. The Executive agrees that
he will at all times keep all inventions secret from everyone except the Company
and such persons as the Board of Directors may from time to time direct. The
Executive shall, as requested by the Company at any time and from time to time,
whether prior to or after the expiration of the Consulting Period, execute and
deliver to the Company any instruments deemed necessary by the Company to effect
disclosure and assignment of the Inventions to the Company or its designees and
any patent applications (United States or foreign) and renewals with respect
thereto, including any other instruments deemed necessary by the Company for the
prosecution of patent applications or the acquisition of letters of patent.
(ii) Reference is hereby made to Appendix B to this
Agreement reprinting the text of Sections 2870 through 2872 of the California
Labor Code. Execution of this Agreement by the Executive shall confirm that the
Executive has received and read such Appendix B. The provisions of this Section
3.1(b) shall not apply to any invention which qualifies fully under the
provisions of Section 2870 of the California Labor Code.
4
3.2 Prohibited and Competitive Activities. The Executive and the
-------------------------------------
Company recognize that due to the nature of the Executive's engagement hereunder
and the relationship of the Executive to the Company, both prior and subsequent
to the date of this Agreement, the Executive has had and will have access to,
has had and will acquire, and has assisted and may continue to assist in
developing, confidential and proprietary information relating to the business
and operations of the Company and its affiliates, including Trade Secrets. The
Executive acknowledges that such information has been and will be of central
importance to the business of the Company and its affiliates and that disclosure
of it to, or its use by, others (including, without limitation, the Executive
(other than in furtherance of the Company's business and affairs)) could cause
substantial loss to the Company. The Executive and the Company also recognize
that an important part of the Executive's duties has been to develop goodwill
for the Company and its affiliates through his personal contact with Clients (as
defined below), employees, and others having business relationships with the
Company, and that there is a danger that this goodwill, a proprietary asset of
the Company, may follow the Executive when his employment relationship with the
Company is terminated. The Executive accordingly agrees as follows:
(a) Prohibited Activities. The Executive agrees that he
---------------------
will not at any time during the Consulting Period: (i) (other than in the course
of his duties as Consultant) disclose or furnish to any other person or,
directly or indirectly, use for his own account or the account of any other
person, any Trade Secrets, no matter from where or in what manner he may have
acquired such Trade Secrets, and he shall retain all such Trade Secrets in trust
for the benefit of the Company, its affiliates and the successors and assigns of
any of them, (ii) directly or indirectly, whether for his own account or for the
account of any other person, solicit, divert, or endeavor to entice away from
the Company or any entity controlled by the Company, or otherwise engage in any
activity intended to terminate, disrupt, or interfere with, the Company's or any
of its affiliates' relationship with, Clients, or otherwise adversely affect the
Company's or any of its affiliates' relationship with Clients or other business
relationships of the Company or any affiliate thereof, (iii) publish or make any
statement critical of the Company or any shareholder or affiliate of the
Company, or in any way adversely affect or otherwise malign the business or
reputation or any of the foregoing persons; provided, however, that if, in the
-------- -------
written opinion of counsel, the Executive is legally compelled to disclose Trade
Secrets to any tribunal or else stand liable for contempt or suffer other
similar censure or penalty, then the disclosure to such tribunal of only those
Trade Secrets which such counsel advises in writing are legally required to be
disclosed shall not constitute a Prohibited Activity provided that the Executive
shall give the Company as much advance notice of such disclosure as is
reasonably practicable, or (iv) during the balance of his employment and during
the Consulting Period directly or through one or more intermediaries, solicit
for employment or recommend to any subsequent employer of the Executive the
solicitation for employment of, any person who, at the time of such
solicitation, is employed by the Company or any affiliate thereof; provided,
however, that if any such person contacts the Executive concerning employment
outside the Company and Executive notifies the Company in writing of his intent
to discuss employment opportunities with such person and the Company gives
written permission for such
5
discussions to take place, then any subsequent discussions and any employment
resulting therefrom shall not be deemed to be solicitation for employment by the
Executive for the purposes of this Agreement.
"Clients" shall mean those persons (as defined in Section
4.12(b) below) who, at any time during the Executive's course of employment and
the Consulting Period with the Company (including, without limitation, prior to
the date of this Agreement) are or were clients or customers of the Company or
any affiliate thereof or any predecessor of any of the foregoing.
(b) Non-Competition. By and in consideration of the
---------------
Company's entering into this Agreement and providing the Consulting Fee and
benefits to be provided by the Company to the Executive, and further in
consideration of the Executive's continued exposure to the confidential and
proprietary information of the Company (including, without limitation, the
Company's Trade Secrets), the Executive agrees that the Executive will not,
during the balance of his employment and the term of the Consulting Period,
engage in any Competitive Activity. The term "Competitive Activity" means
engaging in any of the following activities: (i) serving as a director of any
Competitor (as defined below), (ii) directly or indirectly through one or more
intermediaries, either (X) controlling any Competitor or (Y) owning any equity
or debt interests in any Competitor (other than equity or debt interests which
are publicly traded and, at the time of any acquisition, do not exceed 5% of the
particular class of interests outstanding) (it being understood that, if
interests in any Competitor are owned by an investment vehicle or other entity
in which the Executive owns and equity interest, a portion of the interests in
such Competitor owned by such entity shall be attributed to the Executive, such
portion shall be determined by applying the percentage of the equity interest in
such entity owned by the Executive to the interests in such Competitor owned by
such entity), (iii) employment by (including serving as an officer or partner
of), providing consulting services to (including, without limitation, as an
independent contractor) or, managing or operating the business or affairs of,
any Competitor or (iv) participating in the ownership, management, operation or
control of or being connected in any manner with any Competitor. The term
"Competitor" as used herein means any person (other than the Company or any
affiliate thereof) that competes with any of the business conducted by the
Company or any affiliate thereof at or prior to the time the Executive engages
in one or more of the Competitive Activities listed above. The parties agree
that the Company currently conducts business in the following areas, among
others: the design, sale, management and/or support of telecommunications
systems; telecommunications systems integration services; Centrex network
services; telecommunications account management services; high speed data
services; internet access services; voice mail and other "enhanced" services;
discount calling plans and remote call forwarding services; the marketing, sale,
installation and maintenance of data transmission products; local and long
distance telephone services; and the marketing, sale, installation and
maintenance of videoconferencing equipment and telephone systems services.
6
(c) Remedies. The Executive agrees that any breach of the
--------
terms of this Section 3 would result in irreparable injury and damage to the
Company for which the Company would have no adequate remedy at law; the
Executive therefore also agrees that in the event of said breach or any threat
of breach, the Company shall be entitled to an immediate injunction and
restraining order to prevent such breach and/or threatened breach and/or
continued breach by the Executive and/or any and all persons and/or entities
acting for and/or with the Executive, without having to prove damages, in
addition to any other remedies to which the Company may be entitled at law or in
equity. The terms of this paragraph shall not prevent the Company from pursuing
any other available remedies for any breach or threatened breach hereof,
including but not limited to the recovery of damages from the Executive.
4. Waiver and General Release.
--------------------------
4.1 Consultation With Attorney. The Executive has been advised
--------------------------
to consult with an attorney before signing this Agreement, and hereby warrants
that he has done so.
4.2 Term of Offer. The Executive shall have twenty-one (21) days
-------------
from his receipt of this Agreement to accept its terms by signing it.
4.3 Revocation. The Executive shall have seven (7) days after
----------
signing this Agreement to revoke it by notifying the Company in writing of
revocation.
4.4 Mutual Release. The Executive hereby expressly waives any
--------------
and all claims, demands, and causes of action which he has, claims to have, or
may have, whether known or unknown, against the Company and all of its past,
present and future corporate parents, divisions, subsidiaries, affiliates,
related entities, successors, assigns, officers, attorneys, employees and
agents, except claims for indemnity by the Executive against the Company in
------
accordance with the Company's Certificate of Incorporation, Bylaws and/or
applicable law. As used in this Agreement, "claims," "demands," and "causes of
action" include, but are not limited to, contract claims, whether express or
implied, tort claims, equitable claims, claims for breach of fiduciary duty,
fraud claims, claims arising out of federal, state or local laws, regulations or
ordinances prohibiting discrimination on account of race, sex, sexual
orientation, religion, age or national origin, including claims under the Age
Discrimination in Employment Act, wage claims, claims for vacation pay, overtime
pay, severance pay, back pay, fringe benefits, debts, accounts, compensatory
damages, punitive damages, and/or liquidated damages. The Company likewise
waives any and all claims, demands, and causes of action which it has, claims to
have, or may have, whether known or unknown, against the Executive, his heirs,
personal representatives, executors, administrators and assigns, except claims
------
against the Executive for embezzlement or misappropriation or misdirection of
Company assets.
7
4.5 California Civil Code Section 1542. It is understood and
----------------------------------
agreed that all rights under California Civil Code Section 1542 are hereby
expressly waived by each party. Said Section provides as follows:
A general release does not extend to claims which the
creditor does not know or suspect to exist in his favor at the
time of executing the release which if known by him must have
materially affected his settlement with the debtor.
5. Restriction on Sale of Stock; Registration Rights. The Executive
-------------------------------------------------
currently holds 450,000 shares of stock in the Company (the "Shares"). The
Executive may acquire additional shares of the Company's common stock pursuant
to the Option Agreements or otherwise (the "Options," collectively with the
Shares, the "Securities".) While the Executive is a member of the Board, he is
subject to the statutory and regulatory restrictions on the volume of shares of
the Company that he can sell. Based on the potential deleterious effect on the
value of shares of the Company's stock should a substantial number of shares be
sold in a short period, and in consideration of the promises and mutual
covenants contained herein, the Executive shall not, during the Consulting
Period, sell or cause to be sold more than one percent (1%) of the Company's
outstanding common stock in any three (3) month period, or in any other period
that is approved by the Board.
5.1 Market Stand-Off. In connection with any underwritten public
----------------
offering by the Company of its equity securities pursuant to an effective
registration statement filed under the Securities Act of 1933, as amended (the
"Act"), the Executive shall not sell, make any short sale of, loan, hypothecate,
pledge, grant any option for the purchase of, or otherwise dispose or transfer
for value or otherwise agree to engage in any of the foregoing transactions with
respect to, any of the Securities without the prior written consent of the
Company or its underwriters. Such restriction (the "Market Stand-Off") shall be
in effect for such period of time from and after the effective date of the final
prospectus for the offering as may be requested by the Company or such
underwriters, provided that such period of time shall not exceed one hundred and
eighty (180) days. The Executive shall be subject to the Market Stand-Off
provided and only if the officers and directors of the Company are also subject
- --------------------
to similar restrictions. Any new, substituted or additional securities or
options which are by reason of any Recapitalization or Reorganization, as
defined below, distributed with respect to the Securities shall be immediately
subject to the Market Stand-Off, to the same extent the Securities are at such
time covered by such provisions. "Recapitalization" shall mean any stock split,
stock dividend, recapitalization, combination of shares, exchange of shares or
other change affecting the Company's outstanding Common Stock as a class without
the Company's receipt of consideration. "Reorganization" shall mean (i) a merger
or consolidation in which the Company is not the surviving entity (ii) a sale,
transfer or other disposition of all or substantially all of the Company's
assets or (iii) any transaction effected primarily to change the state in which
the
8
Company is incorporated or to create a holding company structure. In order to
enforce the Market Stand-Off, the Company may impose stop-transfer instructions
with respect to the Securities until the end of the applicable stand-off period.
5.2 Registration Rights. (a) The Company covenants and agrees
-------------------
with the Executive that in the event that the Company proposes to file a
registration statement under the Act with respect to any of its equity
securities (other than pursuant to registration statements on Form S-4 or Form
S-8 or any successor or similar forms), whether or not for its own account, then
the Company shall give written notice of such proposed filing to the Executive
promptly (and in any event at least twenty (20) days before the anticipated
filing date). Such notice shall offer to the Executive, together with others who
have similar rights, the opportunity to include in such registration statement
such number of securities as they may request. The Company shall cause the
managing underwriter of a proposed underwritten offering (unless the offering is
an underwritten offering of a class of the Company's equity securities other
than Common Stock and the managing underwriter has advised the Company in
writing that, in its opinion, the inclusion in such offering of Common Stock
would materially adversely affect the distribution of such offering) to permit
the Executive to be included in the registration to include such securities in
the proposed offering and the Company shall use its reasonable best efforts to
include such securities in such proposed offering on the same terms and
conditions as any similar securities of the Company included therein. If the
offering of which the Company gives notice is a public offering involving an
underwriter, the right of the Executive to registration pursuant to this section
shall be conditioned upon the Executive's participation in such underwriting and
the inclusion of the securities to be sold by the Executive in the underwriting.
Should the Executive propose to distribute securities through such underwriting,
he shall enter into an underwriting agreement in customary form with the
representative of the underwriter or underwriters. Such underwriting agreement
shall provide that expenses relating to the inclusion of securities owned by the
Executive in any such underwritten offering, other than any underwriter's
discount and commissions or transfer taxes, shall be paid by the Company.
(b) The foregoing notwithstanding, in the case of a firm
commitment offering on underwriting terms appropriate for such a transaction, if
any such managing underwriter of recognized standing shall advise the Company
and the Executive in writing that, in its opinion, the distribution of all or a
specified portion of the securities requested to be included in the registration
concurrently with the securities being registered by the Company would
materially adversely affect the distribution of such securities by increasing
the aggregate amount of the offering in excess of the maximum amount of
securities which such managing underwriter believes can reasonably be sold in
the contemplated distribution, then the securities to be included in a
registration which is a primary underwritten offering on behalf of the Company
shall be included in the following order: (i) first, the securities the Company
proposes to include therein and (ii) second, such other securities (including
the Securities) requested to be included pro rata among the other holders
(including the Executive) of such other securities according to the number of
securities requested to be included by each such holder requesting inclusion
therein. In the
9
event that a holder or holders of the Company's securities (other than the
Executive) requests, pursuant to rights granted to such holder or holders, that
the Company file a registration statement for the public offering of securities
and the Company and the other holders of the Company's securities (including the
Executive) who have rights to be included in such registration, request to be
included in such registration and the managing underwriter of such offering
shall advise the Company and the holders requesting inclusion in the offering
that, in its opinion, the distribution of a specified portion of the securities
requested to be included in the registration would materially adversely affect
the distribution of such securities by increasing the aggregate amount of the
offering in excess of the maximum amount of securities which such managing
underwriter believes can reasonably be sold in the contemplated distribution
then, the securities to be included in the registration shall be included in the
following order: (i) first, all of the securities requested to be included
therein by the holder or holders making the initial request for the
registration, and (ii) second, such other securities (including the Securities)
requested to be included pro rata among the Company and the holders of such
other securities according to the number of securities requested to be included
by the Company and each such holder requesting inclusion therein. For purposes
of this section, the Company agrees to request for inclusion in the registration
only that number of securities that the Company intends, in good faith, to sell,
if all such securities so requested by the Company were permitted to be included
by the managing underwriter in such registration and sold pursuant thereto.
6. Miscellaneous.
-------------
6.1 Binding Effect; Assignment. This Agreement shall inure to
--------------------------
the benefit of and be binding upon the parties hereto and their respective
heirs, executors, representatives, estates, successors and assigns, including
any successor or assign to all or substantially all of the business and/or
assets of the Company, whether direct or indirect, by purchase, merger,
consolidation, acquisition of stock, or otherwise; provided, however, that the
-------- -------
Executive, or any beneficiary or legal representative of the Executive, shall
not assign all or any portion of the Executive's rights or obligations under
this Agreement without the prior written consent of the Company.
6.2 Notices. Whenever notice is required to be given under the
-------
terms of this Agreement, such notice shall be in writing and delivered by hand
or by registered or certified mail, postage prepaid, or transmitted by telex,
telegram or telecopier, addressed as follows:
10
(a) If to the Company, to it at:
View Tech, Inc.
950 Flynn Road
Camarillo, CA 93012
Tel: (805) 482-8277
Fax: (805) 482-3825
(b) With a copy to:
Brobeck, Phleger & Harrison LLP
550 South Hope Street
Los Angeles, CA 90071
Tel: (213) 489-4060
Fax: (213) 745-3345
Attn: V. Joseph Stubbs, Esq.
(c) If to the Executive, to him at:
Mr. John W. Hammon
35065 Beach Boulevard
Capistrano Beach, CA 92675
(d) With a copy to:
Heller, Ehrman, White & McAuliffe
601 S. Figueroa Street, 40th Floor
Los Angeles, CA 90017-5704
Tel: (213) 689-0200
Fax: (213) 614-1868
Attn: Paul H. Greiner, Esq.
or to such other address as either party shall have specified for itself from
time to time to the other party in writing. All such notices shall be
conclusively deemed to be received and shall be effective, if sent by hand
delivery, upon receipt, or if sent by registered or certified mail, upon
receipt, or if transmitted by telex, telegram or telecopier (which shall be
followed promptly by hand delivery), upon confirmation of such transmission.
6.3 Governing Law. This Agreement and the rights and obligations
-------------
of the parties hereto shall be construed and enforced in accordance with and
governed by the laws of the State of California without giving effect to the
conflict of law principles thereof.
6.4 Severability. If any term or other provision of this
------------
Agreement, or any application thereof to any circumstances is invalid, illegal
or incapable of being
11
enforced by any rule of law or public policy, in whole or in part, such
provision or application shall to that extent be severable and shall not affect
other provisions or applications of this Agreement.
6.5 Entire Agreement. This Agreement contains the entire
----------------
understanding of the parties hereto with respect to its subject matter hereof
and supersedes all prior agreements and understandings, oral or written, between
them as to such subject matter, including, but not limited to, any and all
employment agreements, whether written, oral or implied.
6.6 Counterparts. This Agreement may be executed in any
------------
number of counterparts, each of which shall be deemed to be an original, but all
of which together shall constitute one instrument.
6.7 Plurals; Gender; Headings. Under this Agreement, unless the
-------------------------
context otherwise requires, words in the singular number or in the plural number
shall each include the singular number and the plural number, and the use of any
gender shall include all genders. The headings in this Agreement are for
reference purpose only and shall not limit or otherwise affect the meaning or
interpretation of this Agreement.
6.8 Further Assurances. Each party hereto shall do and perform
------------------
or cause to be done and performed all further acts and things and shall execute
and deliver all other agreements, certificates, instruments, and documents as
any other party hereto reasonably may request in order to carry out the intent
and accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
6.9 Amendment and Modification. This Agreement may not be
--------------------------
amended, nor may any provision hereof be modified or waived, except by an
instrument in writing duly signed by the party to be charged.
6.10 Withholding. The Company shall not withhold any statutory
-----------
deductions from the Executive's Consulting Fee and will submit a Form 1099
documenting the payment of the Consulting Fee. The Executive shall defend the
Company and hold it harmless as to any claims or actions against the Company
under federal, state or local tax laws for taxes owed by the Executive arising
out of the Executive's receipt of the Consulting Fee.
6.11 Waiver. No provision of this Agreement may be waived or
------
discharged unless such waiver or discharge is agreed to in writing and signed by
the affected party, and no waiver or discharge of any breach by any party hereto
of any provision of this Agreement to be performed by such party, shall be
deemed a waiver or discharge of any other provisions or a waiver or discharge of
any breach of any other provisions, respectively, at the same or at any prior or
subsequent time.
12
6.12 Definitions.
-----------
(a) The term "affiliate" shall mean, with respect to any
person, any other person directly or indirectly controlling, controlled by, or
under common control with such person.
(b) The term "person" shall mean an individual, a
corporation, a partnership, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency or
instrumentally thereof.
6.13 Warranties.
----------
(a) Each party has received legal advice from attorneys of
their choice with respect to the advisability of entering into this Agreement
and the releases provided herein. This Agreement is based upon such advice,
after each party's respective attorneys were provided with a full and fair
opportunity to review the Agreement and consult with their respective clients
regarding the terms contained herein.
(b) Each party entering into this Agreement, and each
person executing this Agreement on behalf of any party, has full authority to do
so and to make the covenants, promises, representations, and warranties set
forth herein.
(c) Except as otherwise provided herein, this Agreement is
intended to be final and binding upon the parties and is further intended to be
effective as a full and final accord and satisfaction among them regardless of
any claims of fraud, misrepresentation, concealment of fact, mistake of fact or
law, duress, coercion, or any other circumstances whatsoever relating to the
subject matter or execution of this Agreement. Each party relies upon the
finality of this Agreement as a material factor inducing that party's execution
of this Agreement.
(d) There are no other agreements or understandings between
the parties relating to the matters and releases referred to in this Agreement
other than as set forth herein. The mutual obligations and undertakings of the
parties expressly set forth in this Agreement are the sole and only
consideration of this Agreement, and no representations, promises or inducements
of any nature whatsoever have been made by the parties other than as appear in
this Agreement.
13
(e) This Agreement has been read carefully by each of the
parties and its contents are known and understood by each of the parties. This
Agreement is signed freely and voluntarily by each party hereto.
6.14 Attorneys' Fees. In the event of any litigation between the
---------------
parties in connection with the enforcement, interpretation or defense of this
Agreement, or the defense of any claim barred by this Agreement, the prevailing
party or parties shall be entitled to reimbursement from the other party of all
reasonable costs and expenses incurred by it in connection with the litigation,
including attorneys' fees.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the dates provided below.
VIEW TECH, INC.
BY: /s/ Robert G. Hatfield
------------------------------
NAME: ROBERT G. HATFIELD
TITLE: CHIEF EXECUTIVE OFFICER
/s/ John W. Hammon
---------------------------------
JOHN W. HAMMON
4/22/97
14