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EXHIBIT 10.9
SECOND AMENDED AND RESTATED
EMPLOYMENT AND NONCOMPETITION AGREEMENT
THIS SECOND AMENDED AND RESTATED EMPLOYMENT AND NONCOMPETITION
AGREEMENT (this "Agreement") by and among AXISTEL COMMUNICATIONS, INC., a
Delaware corporation ("Employer"), eVENTURES GROUP, INC., a Delaware corporation
("eVentures") and SAMUEL L. LITWIN ("Employee") is made and entered into this
2nd day of October, 2000 (the "Execution Date"), effective as of September 7,
2000, provided that the Reorganization (as defined herein) is consummated and
proper notice is given to Employee in accordance with this Agreement (the
"Effective Date").
RECITALS:
WHEREAS, the Employer and Employee entered into that certain Employment
and Noncompetition Agreement (the "Original Agreement") dated as of October 28,
1998 (the "Original Agreement Date");
WHEREAS, the Employer and Employee entered into that certain Amended
and Restated Employment and Noncompetition Agreement dated as of September 22,
1999 (the "Prior Agreement"), which entirely superseded the Original Agreement;
WHEREAS, eVentures is undergoing an internal corporate reorganization
(the "Reorganization") that will consolidate the operations of the Employer,
e.Volve Technology Group, Inc. and Internet Global Services, Inc.;
WHEREAS, pursuant to the Reorganization, the consolidation of the
Employer will occur either through a merger of the Employer with and into an
operating company ("Opco") that is a wholly-owned subsidiary of eVentures, or
through the contribution of the Employer's capital stock to Opco; and
WHEREAS, in connection with the consummation of the Reorganization, the
Employer, eVentures and Employee desire to modify and clarify certain provisions
of the Prior Agreement by amending and restating the Prior Agreement, which upon
the effectiveness of this Agreement will be entirely superseded by this
Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual covenants set forth in this Agreement, the parties hereto hereby agree as
follows:
1. EMPLOYMENT; DUTIES. Employee will serve as the Senior Vice President
of Business Development and President of International Services of Employer and
eVentures, reporting directly to the Senior Executive Vice President and Chief
Operating Officer ("Chief Operating Officer") of Employer and eVentures, as
applicable, and shall be responsible for the development of business
relationships with foreign telecommunications organizations and governmental
agencies for Employer and eVentures, and shall, consistent with his position,
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perform such other additional executive duties as may from time to time be
assigned to him by the Chief Operating Officer of the Employer or eVentures, as
applicable, or the Board of Directors of eVentures (the "Board") or such other
person or entity designated by the Chief Operating Officer of the Employer or
eVentures, as applicable, or the Board. Employee shall devote his full and
undivided business time, attention and efforts to the Employer's and eVentures'
business and to the performance of Employee's duties under this Agreement.
Employee shall faithfully perform all duties assigned to him under this
Agreement to the best of Employee's abilities. The Employer and eVentures
covenant and agree that, during the Term (as hereinafter defined) hereof, the
Employer or eVentures shall not relocate the principal office of the Employer to
a geographical location outside of a 50 mile radius from the current office of
the Employer and that Employee shall be allowed to perform his services under
this Agreement at such principal office of the Employer.
2. COMPENSATION. Employee acknowledges and agrees that as of the
Execution Date, the Employer does not owe him any compensation (other than
accrued and unpaid base salary through the Execution Date under the Prior
Agreement) and that he is only entitled to the compensation set forth below for
his services rendered hereunder after the date hereof.
(a) The Employee shall be entitled to receive from the
Employer an annual salary ("Base Salary") of $180,000 as full
compensation for all the services rendered by Employee during each
fiscal year of the Term (as hereafter defined) of Employee's employment
and paid in accordance with the customary payroll practices of
Employer.
(b) For each fiscal year or portion thereof during the Term,
Employee shall be eligible for discretionary bonuses payable by
Employer on such terms and conditions, subject to such standards, as
shall be determined, in good faith, from time to time in the discretion
of the Board.
(c) Employee's compensation shall be reviewed at least
annually by the Board and any appropriate increases may be made to the
Base Salary in the sole discretion of the Board.
(d) The Employee shall be entitled to receive prompt
reimbursement for all reasonable business and entertainment expenses
incurred by him in performing services hereunder, provided that the
Employee properly accounts therefor to the Board. The Employee shall
obtain the approval of the Board prior to incurring any single
expenditure in excess of $5,000.
(e) The Employee shall receive only such standard employment
benefits as are available to general employees of Employer and
eVentures, such as life, health, dental, and
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short term and long term disability plans, and a policy for vacation,
personal time off, and sick leave (collectively, the "Standard Benefit
Plans").
(f) The Employee shall be entitled to reasonable vacation
consistent with his position.
(g) Any payments or benefits to which the Employee may be
entitled under this Section 2 in respect of any fiscal year during
which the Employee is employed by Employer and eVentures for less than
the entire such fiscal year shall, unless otherwise provided herein or
in the applicable plan or arrangement, be prorated in accordance with
the number of days in such fiscal year during which he is so employed.
3. STOCK OPTIONS. On the Original Agreement Date, the Employer granted
to Employee non-qualified stock options (the "Stock Options") to purchase
425,000 shares of Common Stock of eVentures. Such Stock Options were granted
pursuant to eVentures' customary Stock Option Plan substantially in the form
attached hereto as Exhibit A, together with the form of Stock Option Grant
attached hereto as Exhibit B. Subject to ratification by the Board, the Stock
Options shall, to the maximum extent permitted by the Internal Revenue Code, be
classified as Incentive Stock Options pursuant to the terms of the Stock Option
Plan. The exercise price for such Stock Options shall be $10.00 per share of
Common Stock. The Stock Options granted hereunder shall vest as follows: (x)
141,166 shares (1/3) vested on September 21, 2000; (y) 141,67 shares (1/3) shall
vest on September 21, 2001; and (z) 141,667 shares (1/3) shall vest on September
21, 2002; provided, however, any non-vested Stock Options shall vest in full
upon the occurrence of (A) any Change of Control (as such term is defined in the
Stock Option Plan) of eVentures, (B) any termination of Employee's employment
hereunder without Cause pursuant to Section 5(d) below, or (C) the failure of
Employer and eVentures to make a Qualifying Extension Offer (as hereafter
defined) upon the expiration of the Term. Notwithstanding any provision of the
Stock Option Plan or Stock Option Grant to the contrary, to the extent
provisions contained therein are inconsistent or conflict with the terms and
provisions of this Agreement, the terms and provisions of this Agreement shall
control. To the extent this Agreement does not specifically address an issue or
term raised in the Stock Option Plan or Stock Option Grant, then the provisions
and terms of the Stock Option Plan or Stock Option Grant will apply.
4. EMPLOYMENT TERM. The term of Employee's employment hereunder
commenced on September 22, 1999, and shall continue for twenty-four (24) months
thereafter (for a Term ending September 21, 2001), unless earlier terminated in
accordance with the terms of this Agreement (the "Term"). This Agreement may be
renewed by mutual agreement of Employer, eVentures and Employee at the end of
the Term for additional one (1) year periods. Upon the expiration of the initial
Term, Employer and eVentures agree to offer to extend the Term for one (1)
additional year (for a Term ending September 21, 2002) on substantially
identical terms as set
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forth herein at the Base Salary applicable at the time of expiration of the
initial Term, but without a requirement for the issuance of any additional Stock
Options to Employee (a "Qualifying Extension Offer").
5. REASON FOR EMPLOYMENT TERMINATION. The Employee's employment
hereunder may be terminated under the following circumstances:
(a) MUTUAL AGREEMENT. Termination by mutual agreement of the
parties hereto.
(b) DEATH OR DISABILITY. Employment shall terminate upon the
death or permanent disability of the Employee. For purposes of this
Agreement, "Disability" occurs if the Employee is unable to perform
duties on a full-time basis because of mental or physical incapacity,
including, without limitation, alcoholism or drug abuse, which requires
a leave of absence in excess of 90 days during any calendar year. In
the event the Employee is a Qualified Individual with a Disability, as
defined in the Americans with Disabilities Act, Employer and eVentures
shall not terminate the Employee's employment hereunder if the Employee
is able to perform the essential functions of the Employee's job with
reasonable accommodation from Employer and eVentures.
(c) CAUSE. For purposes of this Agreement, Employer and
eVentures shall have "Cause" to terminate the Employee's employment
hereunder only upon:
(i) The willful and continued failure by the Employee
to substantially perform his duties as outlined hereunder
after written demand for substantial performance is delivered
by the Board;
(ii) The engaging by the Employee in criminal conduct
or conduct constituting moral turpitude that is materially
injurious to Employer and/or eVentures, monetarily or
otherwise;
(iii) The continued willful insubordination of the
Employee after written demand by the Board is delivered to the
Employee specifically identifying the insubordination;
(iv) The embezzlement or misappropriation by the
Employee of the funds of Employer and/or eVentures;
(v) Acts of dishonesty or other intentional acts
(including any breach of the Employee's covenants contained in
this Agreement or the Stockholders Agreement dated as of
September 22, 1999 to which Employee and Employer are each
parties) that cause material adverse harm to Employer and/or
eVentures
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(other than as a consequence of good faith decisions made by
the Employee in the normal performance of the Employee's
duties hereunder); and/or
(vi) Employee is convicted of a felony which carries
a minimum prison sentence upon conviction of one (1) year or
longer.
(d) TERMINATION WITHOUT CAUSE. Notwithstanding any provisions
of this Agreement to the contrary, Employer and eVentures may terminate
the Employee's employment for any reason, or for no reason, other than
those specified in the foregoing paragraphs (a), (b) or (c) at any time
during the Term effective upon delivery of two (2) day's notice by
Employer and eVentures.
(e) TERMINATION BY THE EMPLOYEE WITH NOTICE. The Employee may
terminate this Agreement (voluntary resignation) at any time during the
Term effective upon thirty (30) days written notice to the Board.
(f) TERMINATION UPON EXPIRATION OF TERM. Employment shall
terminate upon expiration of the Term.
6. COMPENSATION UPON TERMINATION. The Employee shall be entitled to the
following compensation from Employer (in lieu of all other sums owed or payable
to the Employee hereunder) upon the termination of employment during the Term of
this Agreement.
(a) TERMINATION FOR CAUSE. In the event Employer and eVentures
terminate Employee's employment hereunder for Cause during the Term of
this Agreement, then Employee's employment hereunder shall immediately
terminate, and Employee shall only receive the Base Salary prorated
through the effective date of termination of Employee's employment.
(b) VOLUNTARY RESIGNATION. Notwithstanding anything contained
in this Agreement to the contrary, Employee may resign and terminate
Employee's employment hereunder subject only to the requirement that
Employee shall provide Employer and eVentures with a minimum of thirty
(30) days prior written notice. In such event, Employee shall only
receive the unpaid Base Salary prorated through the effective date of
Employee's resignation.
(c) DEATH. In the event of the death of Employee during the
Term of this Agreement, this Agreement and Employee's employment
hereunder shall terminate as of the date of the death of Employee, and
his estate or personal representative shall be entitled to receive the
unpaid Base Salary, prorated for the period of Employee's employment to
the date of his death and a one time payment of $10,000.
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(d) DISABILITY. If the Employee's employment is terminated as
a result of Disability (as defined in Section 5 above), the Employee
will continue to be provided long term disability benefits (if any) in
accordance with Employer's then existing Standard Benefit Plan. In
addition, Employer will pay to the Employee the remaining unpaid pro
rata portion of the Base Salary through the date of Disability.
(e) PAYMENT UPON TERMINATION WITHOUT CAUSE OR BY FAILURE TO
MAKE A QUALIFYING EXTENSION OFFER. In the event Employee's employment
hereunder is terminated for reasons other than (x) for Cause, (y) as a
result of the voluntary resignation of Employee or (z) as a result of
Employee's death or Disability (i.e., termination without Cause), then,
in such event, Employee shall be entitled to receive the Base Salary
then in effect for the remainder of the Term hereunder. In addition,
if, upon expiration of the Term on September 21, 2001, Employer and
eVentures fail to make a Qualifying Extension Offer to Employee, then,
in such event, Employee shall be entitled to receive the Base Salary
then in effect for a period of six (6) months. In each instance, such
payments shall be made at such times as if Employee's employment
hereunder had not terminated. In addition, in the event of a
termination of employment without Cause, the contractual restriction on
Employee's ability to sell any shares of eVentures common stock set
forth in the Registration Rights Agreement executed contemporaneously
with the Prior Agreement among eVentures and certain of its
stockholders shall terminate and cease to apply to Employee.
(f) SUSPENSION. Employer and eVentures shall have the right to
suspend Employee with full pay and benefits for any period of time the
Board of Directors of Employer or the Board, as applicable, deems
necessary or appropriate to investigate Employee's conduct.
7. COVENANT NOT TO COMPETE. During the Restricted Period (as defined
below) (or such lesser period to the maximum extent permitted by applicable
law), Employee agrees that Employee will not, directly or indirectly (including,
without limitation, as a partner, shareholder, director, officer or employee of,
or lender or consultant to, any other person, firm or other entity), in any
capacity, within, into or from the Restricted Territory (as defined below)
engage or cause others to engage in the business that eVentures, Employer and/or
their subsidiaries or affiliates are engaged in at the time of termination, or
any aspect thereof of (consisting, as of the date hereof, principally of the
services described in eVentures' Disclosure Letter dated on or about the date of
the Prior Agreement) (the "Business"), unless first authorized in writing by
eVentures, which authorization may be withheld in the sole and absolute
discretion of eVentures. For purposes of this Agreement, "Restricted Period"
means the period of Employee's employment hereunder and the following applicable
period after the date of termination of Employee's employment for the following
reasons: (i) if Employee voluntarily resigns, a period equal to two (2) years
after the date of such resignation; (ii) for any termination without Cause, the
remaining Term of this
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Agreement (i.e., the time period in which Employee is making payments under
Section 6(e) above); (iii) as a result of Employer and eVentures failing to make
a Qualifying Extension Offer, six (6) months after the date of termination
(i.e., the time period in which Employer is making payments under Section 6(e)
above); provided, at Employer's option, Employer may extend such payments for an
additional six (6) month period in which event the Restricted Period shall be
extended for such six (6) month additional period; (iv) for any termination with
Cause, a period equal to three (3) years after the date of such termination; and
(v) for any other termination, including Employee's failure to accept a
Qualifying Extension Offer at the end of the Term, a period of two (2) years
after the date of termination or non-renewal. For purposes of this Agreement,
the term "Restricted Territory" shall mean that the Business of Employer and
eVentures has been initiated in any area of the world (or such lesser territory
to the maximum extent permitted by applicable law). If Employee violates any
obligations under this Section 7, then the time periods hereunder shall be
extended by the period of time equal to that period beginning when the
activities constituting such violation commenced and ending when the activities
constituting such violation terminate. Any efforts made by Employee to
consummate sales of services or goods for and on behalf of the Employer and
eVentures to any competitors of Employer and eVentures during the term of this
Agreement shall not violate the provisions of this Section 7.
8. NONSOLICITATION. During the Employee's employment hereunder, and for
a period of twenty-four (24) months from and after the date of termination of
Employee's employment for any reason, except as set forth below (or such lesser
period to the maximum extent permitted by applicable law), Employee agrees that
Employee shall not, directly or indirectly, for himself or on behalf of, or in
connection with, any person, firm or other entity other than Employer or
eVentures, solicit or cause others to solicit (i) the business or patronage of
any person, firm or other entity with whom Employer or eVentures has or had a
business relationship (as a customer, supplier or otherwise) or with whom
Employer or eVentures has proposed entering into a business relationship (as a
customer, supplier or otherwise), or (ii) any person who, on the date hereof and
on the date of termination of Employee's employment hereunder, was an employee
or consultant of Employer or eVentures, or any of their subsidiaries or their
affiliates, for employment or as an independent contractor with any person or
entity, unless first authorized in writing by Employer or eVentures, as
applicable, which authorization may be withheld in Employer's or eVentures' sole
and absolute discretion; provided, however, that in the event Employee is
terminated without Cause or he does not receive a Qualifying Extension Offer,
the provisions of this Section 8 shall only apply for so long as Employer
continues to pay Employee the applicable amounts specified in Section 6(e)
above.
9. CONFIDENTIALITY. In addition to Employee's obligations as a
stockholder of Employer pursuant to that certain Stockholders Agreement dated as
of the date of the Prior Agreement, by and among Employer and the stockholders
of Employer, from and after the Execution Date, Employee shall not communicate
or divulge to, or use for the benefit of, any
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person, firm or other entity other than Employer or eVentures, any of the trade
secrets, business and/or marketing plans, or any proprietary or confidential
information with respect to Employer or eVentures, their subsidiaries or their
affiliates, and their business, financial condition, business operations or
methods or business prospects. The preceding sentence shall not apply to
information which (i) is, was or becomes generally known or available to the
public or the industry other than as a result of a disclosure by Employee in
violation of this Agreement, or (ii) is required to be disclosed by law.
Employee shall advise Employer and eVentures, in writing, of any request,
including a subpoena or similar legal inquiry, to disclose any such confidential
information, so that Employer or eVentures may, at their option, seek
appropriate legal relief. Employee is aware of no obligations, legal or
otherwise, inconsistent with the terms of this Agreement or with his undertaking
employment with Employer and eVentures. Employee will not disclose to Employer
or eVentures, or use to induce Employer or eVentures to use, any proprietary
information or trade secrets of others. Employee represents that he has returned
all property and confidential information belonging to all prior employers.
10. RETURN OF EMPLOYER PROPERTY. Immediately upon the expiration or
earlier termination of this Agreement, Employee shall return to Employer or
eVentures, as applicable, any and all property of Employer or eVentures, as
applicable, including, but not limited to, all documents, agreements, schedules,
statements, customer lists, supplier lists, plans, designs, parts and equipment,
that is in the possession or control (direct or indirect) of Employee.
11. SURVIVAL: REMEDIES; SEVERABILITY. Employee specifically
acknowledges that (a) eVentures and Employer themselves or through one or more
of their subsidiaries currently operates, or will operate following the Original
Agreement Date, in the Restricted Territory; (b) eVentures and Employer
themselves or through one or more of their subsidiaries or affiliates receives a
significant amount of business from and throughout the Restricted Territory; (c)
eVentures and Employer themselves or through one or more of their subsidiaries
or affiliates, plans to expand operations within and throughout the Restricted
Territory; and (d) the geographic restrictions contained in Section 7 hereof,
and the length of time restrictions in Sections 7, 8 and 9 hereof are each
necessary and reasonable and were negotiated between Employer and Employee. The
restrictions and obligations set forth in Sections 7, 8, 9 and 10 hereof shall
survive the expiration or termination of this Agreement. The parties hereto
hereby acknowledge and agree that the restrictions and obligations set forth in
Sections 7, 8, 9 and 10 hereof are reasonable and necessary, and that any
violation thereof would result in substantial and irreparable injury to Employer
and eVentures, and that Employer and/or eVentures may not have an adequate
remedy at law with respect to any such violation. Accordingly, Employee agrees
that, in the event of any actual or threatened violation thereof, Employer
and/or eVentures shall have the right and privilege to (x) obtain, without the
necessity of posting bond therefor, and in addition to any other remedies that
may be available, equitable relief, including temporary and permanent injunctive
relief, to cease or prevent any actual or threatened violation of any provision
hereof and (y) cease paying Employee any amounts pursuant to the terms hereof,
including, without limitation, the
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payments provided in Section 6(e) above; provided, however, that in the event a
final determination is made that either (x) Employee has not violated any of the
terms hereof or (y) such violation has not resulted in damages to Employer or
eVentures in excess of the withheld payments provided in Section 6(e) above
("Damages"), then Employer shall promptly pay to Employee such amounts that it
withheld in excess of the aggregate of such Damages. Each and every provision
set forth in Sections 7, 8, 9 and 10 hereof is independent and severable from
the others, and no restriction will be rendered unenforceable by virtue of the
fact that, for any reason, any other or others of them may be unenforceable in
whole or in part. If any provision in this Agreement, including, without
limitation, those in Sections 7, 8, 9 and 10 hereof is unenforceable for any
reason whatsoever, that provision will be appropriately limited and reformed to
the maximum extent provided by applicable law. If the scope of any restriction
contained herein is too broad to permit enforcement to its full extent, then
such restriction shall be enforced to the maximum extent permitted by law so as
to be judged reasonable and enforceable, and the parties agree that such scope
may be modified by an arbitrator or judge in any proceeding to enforce this
Agreement. This includes, without limitation, altering or enforcing only
portions of the limits on activity restrictions, the geographic scope, and/or
the duration of the restrictions unless to do so would be contrary to law or
public policy.
12. MISCELLANEOUS.
(a) NOTICES. All notices or demands for performance required or
permitted to be given hereunder shall be in writing and shall be deemed given
when delivered in person, or three (3) business days after being placed in the
hands of a courier service (e.g., DHL or Federal Express) prepaid or faxed
provided that a confirming copy is delivered forthwith as herein provided,
addressed as follows:
If to Employer:
AxisTel Communications, Inc.
One Evertrust Plaza, 8th Floor
Jersey City, NJ 07302
Attn: President
If to eVentures:
eVentures Group, Inc.
300 Crescent Court, Suite 800
Dallas, TX 75201
Attn: Thomas P. McMillin and Stuart J. Chasanoff
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If to Employee:
Samuel L. Litwin
3088 State Highway 27, Suite 200
Kendall Park, NY 08824
and/or to such other respective addresses and/or addressees as may be designated
by notice given in accordance with the provisions of this Section.
(b) ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof, and shall be
binding upon and inure to the benefit of the parties hereto and their respective
legal representatives, successors and permitted assigns. Except as set forth
herein, the provisions of this Agreement supersede any and all other agreements
or understandings, whether oral or written, with respect to Employee's
employment by Employer or eVentures, including without limitation, the Prior
Agreement. Any amendments, or alternative or supplementary provisions to this
Agreement must be made in writing and duly executed by the authorized
representative or agent of each of the parties hereto.
(c) REPLACEMENT OF "EMPLOYER" UNDER THIS AGREEMENT. Upon notice in
accordance with this Agreement by the Employer or eVentures to the Employee of
the consummation of the Reorganization and Opco's execution of a counterpart
signature page to this Agreement, (i) Opco will (a) replace the Employer in this
Agreement as the "Employer" for purposes of this Agreement, (b) assume the
Employer's obligations under this Agreement with respect to the Employee and
(ii) except as modified in clause (i) above, all terms and provisions of this
Agreement shall remain in full force and effect.
(d) NON-WAIVER. The failure in any one or more instances of a party to
insist upon performance of any of the terms, covenants or conditions of this
Agreement, to exercise any right or privilege conferred in this Agreement or the
waiver by said party of any breach of any of the terms, covenants or conditions
of this Agreement, shall not be construed as a subsequent waiver of any such
terms, covenants, conditions, rights or privileges, but the same shall continue
and remain in full force and effect as if no such forbearance or waiver had
occurred. No waiver shall be effective unless it is in writing and signed by an
authorized representative of the waiving party.
(e) COUNTERPARTS. This Agreement may be executed by facsimile signature
and in multiple counterparts, each of which shall be deemed to be an original,
and all such counterparts shall constitute but one instrument.
(f) APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED AND CONTROLLED AS
TO VALIDITY, ENFORCEMENT, INTERPRETATION, CONSTRUCTION, EFFECT AND IN ALL OTHER
RESPECTS BY THE INTERNAL LAWS OF THE STATE OF NEW JERSEY APPLICABLE TO CONTRACTS
MADE IN THAT STATE.
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(g) CONSTRUCTION. The parties hereto acknowledge and agree that each
party has participated in the drafting of this Agreement and that the respective
legal counsel for the parties hereto have had the opportunity to review this
document and that the normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall not be applied
to the interpretation of this Agreement. No inference in favor of, or against,
any party shall be drawn from the fact that one party has drafted any portion
hereof.
BOTH PARTIES HERETO HAVE READ THIS ENTIRE AGREEMENT CAREFULLY AND FULLY
UNDERSTAND THE LIMITATIONS THAT THIS AGREEMENT IMPOSES UPON THEM AND ACKNOWLEDGE
AND AGREE THAT THOSE LIMITATIONS ARE REASONABLE.
(h) EFFECTIVENESS. This Agreement shall not be effective as of the
Effective Date unless and until the Reorganization is consummated and proper
notice is given to Employee in accordance with this Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first above written.
EMPLOYER:
AXISTEL COMMUNICATIONS, INC.,
a Delaware corporation
By: /s/ Stuart J. Chasanoff
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Name: Stuart J. Chasanoff
Title: Vice President and Secretary
EMPLOYEE:
/s/ Samuel L. Litwin
-------------------------------------------------
SAMUEL L. LITWIN
eVENTURES GROUP, INC.
By: /s/ Stuart J. Chasanoff
----------------------------------------------
Name: Stuart J. Chasanoff
Title: Senior Vice President and General Counsel
EMPLOYMENT AND NONCOMPETITION AGREEMENT - PAGE 12