1
EXHIBIT 10.9.1
FORM OF EMPLOYMENT AGREEMENT
Set forth below is the form of employment agreement entered into by and
between TriVergent (f/k/a State Communications, Inc.) and each of Charles S.
Houser, Shaler P. Houser, Russell W. Powell, Clark H. Mizell and Daniel E.H.
Sterling. The terms of employment set forth in the employment agreements have
not changed except that the titles of Shaler P. Houser and Russell W. Powell
have changed as indicated below and salaries have been increased. The table
immediately below sets forth the material provisions of each such person's
employment agreement not contained in the form of employment agreement.
- -------------------------------------------------------------------------------------------------------
STARTING DATE OF
NAME INITIAL POSITION CURRENT POSITION SALARY AGREEMENT
- -------------------------------------------------------------------------------------------------------
Charles S. Houser Chief Executive Officer Chief Executive Officer $200,000 9/21/99
- -------------------------------------------------------------------------------------------------------
Shaler P. Houser Chief Executive Officer Senior Vice President of $150,000 9/20/99
Corporate Development
- -------------------------------------------------------------------------------------------------------
Russell W. Powell President Senior Vice President of $147,000 9/20/99
Sales
- -------------------------------------------------------------------------------------------------------
Clark H. Mizell Senior Vice President & Senior Vice President & $142,000 9/17/99
Chief Financial Officer Chief Financial Officer
- -------------------------------------------------------------------------------------------------------
Daniel E.H. Sterling Senior Vice President of Senior Vice President of $102,000 9/09/99
Dealer Sales Dealer Sales
- -------------------------------------------------------------------------------------------------------
THIS CONTRACT IS SUBJECT TO ARBITRATION PURSUANT TO S.C. CODE SEC. 15-48-10*
STATE OF SOUTH CAROLINA )
) EMPLOYMENT AGREEMENT
COUNTY OF GREENVILLE )
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into
effective as of the 28th day of October, 1998 (the "Effective Date") by and
between _____________________, an individual (the "Employee"), and State
Communications, Inc., a South Carolina corporation headquartered in Greenville,
South Carolina (the "Company"). As used herein, the term "Company" shall include
the Company and any and all of its subsidiaries where the context so applies.
W I T N E S S E T H
WHEREAS, the Company desires to enter into an employment relationship
with Employee on certain terms and conditions as set forth herein; and
- ---------------------------
* UNLESS THE UNITED STATES ARBITRATION ACT APPLIES.
2
WHEREAS, Employee has agreed to accept such employment upon the terms
and conditions as set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Position. Subject to the terms and conditions of this Agreement, the Company
hereby employs the Employee and Employee hereby accepts such employment as
_______________________ of the Company.
2. Definitions. For purposes of this Agreement, the following terms shall have
the meanings specified below.
"Change in Control" shall mean:
(i) the acquisition, directly or indirectly, by any Person
(other than (A) any employee plan established by the Company, (B) the
Company or any of its affiliates (as defined in Rule 12b-2 promulgated
under the Exchange Act), (C) an underwriter temporarily holding
securities pursuant to an offering of such securities, or (D) a
corporation owned, directly or indirectly, by stockholders of the
Company in substantially the same proportions as their ownership of the
Company), directly or indirectly, of securities of the Company (not
including the securities beneficially owned by such Person any
securities acquired directly from the Company) representing an
aggregate of 20% or more of the combined voting power of the Company's
then outstanding voting securities;
(ii) during any period of up to two consecutive years
individuals who, at the beginning of such period, constitute the Board
cease for any reason to constitute at least a majority thereof,
provided that any person who becomes a director subsequent to the
beginning of such period and whose nomination for election is approved
by at least two-thirds of the directors then still in office who either
were directors at the beginning of such period or whose election or
nomination for election was previously so approved (other than a
director (A) whose initial assumption of office is in connection with
an actual or threatened election contest relating to the election of
the directors of the Company, as such terms are used in Rule 14a-11 of
Regulation 14A under the Exchange Act, or (B) who was designated by a
Person who has entered into an agreement with the Company to effect a
transaction described in clause (i), (iii) or (iv) hereof) shall be
deemed a director as of the beginning of such period;
(iii) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation other than (A)
a merger or consolidation that would result in the voting securities of
the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into
voting securities of the surviving entity or any parent thereof), in
combination with the ownership of any trustee or other fiduciary
holding securities under an employee benefit plan of any Company, at
least 51% of the combined voting power of the voting securities of the
Company or such surviving entity or any parent thereof outstanding
immediately after such merger or consolidation, or (B) a merger or
consolidation effected to implement a recapitalization of the Company
(or similar transaction) in which no Person is or becomes the
beneficial owner (as defined in clause (i) above), directly or
indirectly, of securities of the Company (not including in the
securities beneficially owned by such Person any securities acquired
directly from the Company) representing 25% or more of the combined
voting power of the Company's then outstanding voting securities; or
(C) a plan of complete liquidation of the Company; or
Page 2
3
(iv) the occurrence of any other event or circumstance which
is not covered by (i) through (iii) above which the Board determines
affects control of the Company and, in order to implement the purposes
of this Agreement as set forth above, adopts a resolution that such
event or circumstance constitutes a Change in Control for the purposes
of this Agreement.
"Cause" shall mean:
(i) in the absence of a Change in Control: (a) fraud; or (b)
embezzlement; or (c) conviction of the Employee of any felony; or (d) a
material breach of, or the willful failure or refusal by the Employee
to perform and discharge the Employee's duties, responsibilities and
obligations under, this Agreement, as determined by the Board in its
reasonable judgment, or the repeated failure of the Employee to follow
reasonable directives and performance standards established by the
Board; or (e) any act of moral turpitude or willful misconduct by the
Employee which is intended to result in personal enrichment of the
Employee at the expense of the Company, or any of its affiliates, or
which has a material adverse impact on the business or reputation of
the Company or any of its affiliates (such determination to be made by
the Board in its reasonable judgment); or (f) intentional material
damage to the property or business of the Company; or (g) gross
negligence; or (h) the ineligibility of the Employee to perform his
duties because of a ruling, directive or other action by any agency of
the United States or any state of the United States having regulatory
authority over the Company.
(ii) after a Change in Control: (a) the willful and continued
failure of the Employee substantially to perform his duties with the
Company (other than any failure due to physical or mental incapacity)
or (b) willful misconduct materially and demonstrably injurious to the
Company, in each case, as determined in the reasonable discretion of
the Board, but only if (1) the Employee has been provided with written
notice of any assertion that there is a basis for termination for cause
which notice shall specify in reasonable detail specific facts
regarding any such assertion, (2) such written notice is provided to
the Employee a reasonable time before the Board meets to consider any
possible termination for cause, (3) at or prior to the meeting of the
Board to consider the matters described in the written notice, an
opportunity is provided to the Employee and his counsel to be heard
before the Board with respect to the matters described in the written
notice, (4) any resolution or other Board action held with respect to
any deliberation regarding or decision to terminate the Employee for
cause is duly adopted by a vote of a majority of the entire Board of
the Company at a meeting of the Board called and held and (5) the
Employee is promptly provided with a copy of the resolution or other
corporate action taken with respect to such termination. No act or
failure to act by the Employee shall be considered willful unless done
or omitted to be done by him not in good faith and without reasonable
belief that his action or omission was in the best interests of the
Company. The unwillingness of the Employee to accept any or all of a
change in the nature or scope of his position, authorities or duties, a
reduction in his total compensation or benefits, a relocation that he
deems unreasonable in light of his personal circumstances, or other
action by or request of the Company in respect of his position,
authority, or responsibility that he reasonably deems to be contrary to
this Agreement, may not be considered by the Board to be a failure to
perform or misconduct by the Employee.
"Code" shall mean the Internal Revenue Code of 1986, as amended, or any
successor statute, rule or regulation of similar effect.
Page 3
4
"Disability" or "Disabled" shall mean the Employee's inability as a
result of physical or mental incapacity to substantially perform his
duties for the Company on a full-time basis for a period of six (6)
months.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Involuntary Termination" shall mean the termination of Employee's
employment by the Employee following a Change in Control which, in the
sole judgment of the Employee, is due to (i) a change of the Employee's
responsibilities, position (including status as Vice President of Sales
of the Company, its successor or ultimate parent entity, office, title,
reporting relationships or working conditions) authority or duties
(including changes resulting from the assignment to the Employee of any
duties inconsistent with his positions, duties or responsibilities as
in effect immediately prior to the Change in Control); or (ii) a change
in the terms or status (including the rolling one year termination
date) of this Agreement; or (iii) a reduction in the Employee's
compensation or benefits; or (iv) a forced relocation of the Employee
outside the Greenville metropolitan area; or (v) a significant increase
in the Employee's travel requirements.
"Person" shall mean any individual, corporation, bank, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization or other entity.
3. Duties. During the term hereof, the Employee shall have such duties and
authority as are typical of someone in his position with a company such as the
Company, including, without limitation, those specified in the Company's bylaws
or those reasonably set forth by the Board. Employee agrees that during the Term
hereof, he will devote his full time, attention and energies to the diligent
performance of his duties. Employee shall not, without the prior written consent
of the Company, at any time during the Term hereof (i) accept employment with,
or render services of a business, professional or commercial nature to, any
Person other than the Company, (ii) engage in any venture or activity which the
Company may in good faith consider to be competitive with or adverse to the
business of the Company or of any affiliate of the Company, whether alone, as a
partner, or as an officer, director, employee or shareholder or otherwise,
except that the ownership of not more than 5% of the stock or other equity
interest of any publicly traded corporation or other entity shall not be deemed
a violation of this Section, or (iii) engage in any venture or activity which
the Board may in good faith consider to interfere with Employee's performance of
his duties hereunder.
4. Term. Unless earlier terminated as provided herein, the Employee's employment
hereunder shall be for a rolling term of two years (the "Term") commencing on
the Effective Date hereof. This Agreement shall be deemed to extend each day for
an additional day automatically and without any action on behalf of either party
hereto.
4.1 Upon Employee's death or Disability, the Company shall have the
right to terminate this Agreement immediately. Upon such termination, the
Employee (or his estate) shall be entitled to receive from the Company as
severance upon such termination, the compensation and benefits, as provided in
Section 5, remaining in the Term.
4.2 At any time, the Company shall have the right to terminate
Employee's employment immediately for Cause, after which the Company's
obligation hereunder shall cease as of the date of the termination.
Page 4
5
4.3 At any time, for any or no reason, the Company, by written notice
to Employee, may cause this Agreement to cease to extend automatically and, upon
such notice, the Term of this Agreement shall be the one year following the date
of such notice, and this Agreement shall terminate automatically upon the
expiration of such Term, after which the Company's obligation hereunder shall
cease.
4.3.1 If the Company terminates the Agreement prior to a
Change in Control for any reason other than for Cause after it fixes the Term
pursuant to this section 4.3, the Employee shall be entitled to receive as
severance upon such termination, the compensation and benefits, as provided in
Section 5, remaining in the Term.
4.3.2 If the Company fixes the Term pursuant to this section
4.3 after a Change in Control, such action shall constitute an Involuntary
Termination, and the Employee shall be entitled to receive as severance upon
such termination, twenty-four (24) months of his annual compensation and
benefits being paid at the time of termination, as provided in Section 5.
4.4 Employee shall have the right to terminate his employment hereunder
if (i) the Company materially breaches this Agreement and such breach is not
cured within 30 days after written notice of such breach is given by Employee to
the Company; (ii) or there is an Involuntary Termination.
4.4.1 If Employee terminates his employment other than
pursuant to clauses (i) or (ii) of this Section 4.4, the Company's obligations
under this Agreement shall cease as of the date of such termination.
4.4.2 If Employee terminates his employment hereunder pursuant
to either clause (i) or clause (ii) of this Section 4.4, Employee shall be
entitled to receive twelve (12) months of his annual compensation and benefits
being paid at the time of termination, as provided in Section 5.
4.5 In the event of termination pursuant to Sections 4.3.1 or 4.3.2 or
Section 4.4.2:
4.5.1 all rights of Employee pursuant to awards of share
grants or options granted by the Company shall be deemed to have vested and
shall be released from all conditions, except for restrictions on transfer
pursuant to the Securities Act of 1933, as amended and such options may be
exercised for up to a maximum of ten years from the date of grant. To the extent
that any term or terms of any option or share grant and this Agreement differ,
the terms of this Agreement govern unless the grant (whether now existing or
entered into after the effective date hereof) expressly states that the
Agreement does not supersede the terms of the grant.
4.5.2 the Employee shall be deemed to be credited with service
with the Company for such remaining Term for the purposes of the Company's
benefit plans; and
4.5.3 the Employee shall be deemed to have retired from the
Company and shall be entitled as of the termination date, or at such later time
as he may elect to commence receiving the total combined qualified and
non-qualified retirement benefit to which he is entitled hereunder, or his total
non-qualified retirement benefit hereunder if under the terms of the Company's
qualified retirement plan for salaried employees, he is not entitled to a
qualified benefit.
If any provision of this Section 4.5 cannot, in whole or in part, be
implemented and carried out under the terms of the applicable compensation,
benefit, or other plan or arrangement of the Company because the Employee has
ceased to be an actual employee of the Company, because the Employee has
insufficient or reduced credited service based upon his actual employment by the
Company, because the plan or arrangement has been terminated or amended after
the effective date of this Agreement, or because of any other reason, the
Company itself shall pay or otherwise provide the equivalent of such rights,
benefits and credits for such benefits to Employee, his dependents,
beneficiaries and estate.
Page 5
6
4.6 Following a Change in Control, in addition to any other termination
payment contained in this Section 4 (the "Termination Payments"), the Employee
shall also be entitled to receive an additional payment in an amount equal to
all taxes (including any interest or penalties imposed with respect to such
taxes) owed by the Employee on these payments, including, without limitation,
any income taxes or excise taxes (including, without limitation, any tax imposed
by Section 4999 of the Code) and any interest and penalties imposed with respect
thereto.
4.7 At the sole discretion of the Company, any Termination Payment may
be made immediately in a lump sum payment or through the regular payroll
schedule during the time in which Employee is to receive Termination Payments
("Termination Payment Period"). The Company's obligation to make Termination
Payments shall be offset by the amount of compensation that Employee receives
from any employment, consulting agreement, independent contractor or other
arrangement pursuant to which he is to receive remuneration ("Other Employment")
during the Termination Payment Period. Employee agrees to promptly notify
Company of his acceptance of any such Other Employment during the Termination
Payment Period and to promptly return to Employer any Termination Payment
attributable to any time period after Employee accepted such Other Employment.
5. Compensation And Benefits. In consideration of Employee's services and
covenants hereunder, Company shall pay to Employee the compensation and benefits
described below (which compensation shall be paid in accordance with the normal
compensation practices of the Company and shall be subject to such deductions
and withholdings as are required by law or policies of the Company in effect
from time to time):
5.1 Annual Salary. During the Term hereof, the Company shall pay to
Employee an initial base salary of $____________. Employee's salary will be
reviewed by the Board at the beginning of each of its fiscal years and, in the
sole discretion of the Board, may be increased for such year.
5.2 Bonus. In addition to the above salary, the Company may pay to
Employee a bonus in an amount and at times to be determined in the sole
discretion of the Board.
5.3 Benefits. Employee shall be entitled to share in any employee
benefits generally provided by the Company to its most highly ranking Employees
and officers for so long as the Company provides such benefits and to any other
benefits given to Employee in the sole discretion of the Board.
6. Gross-Up of Payments. It is the intention of the parties that:
(i) the net amount of all Termination Payments retained by the
Employee after deduction for and payment of all applicable federal, state and
local taxes (the "Withholding Taxes") payable by or on behalf of the Employee
shall be equal to the gross amount of the Termination Payments without regard to
any such deductions or payments (the "Net Termination Payments") and
(ii) the net amount of all other payments or benefits received or to be
received by the Employee from the Company or one of its benefit plans as a
direct or indirect result of or in connection with a Change in Control or in
connection with Termination within one year of a Change in Control, from
whatever source other than a Termination Payment (the "Other Payments"), that
are or become subject to the tax (the "Excise Tax") imposed by Section 4999 of
the Code, shall be equal to the gross amount of the Other Payments without
regard to deduction or payment or any such Excise Tax.
Accordingly, the Termination Payments otherwise payable hereunder shall
be increased by an amount of cash (the "Withholding Gross-Up Payment") equal to
all Withholding Taxes payable by or on behalf of the Employee in respect of the
Termination Payments, including any Withholding Taxes as may be due in respect
of such additional amounts to be paid pursuant to this sentence as will result
in the
Page 6
7
Employee actually retaining an amount equal to the Net Termination Payments. In
addition, if the sum of the Termination Payments, the Withholding Gross-Up
Payment and the Other Payments (the "Total Payments") are or become subject to
the Excise Tax, the Company shall pay the Employee within 30 days of the
termination date an additional cash amount (the "Excise Gross-Up Payment") such
that the net amount actually retained by the Employee, after deduction for or
payment of any Excise Tax on the Total Payments and the sum of any Withholding
Taxes upon the payment provided by this sentence shall be equal to the Total
Payments (the "Net Total Payments"). For the purposes of determining whether any
of the Total Payments will be subject to the Excise Tax and the amount of such
Excise Tax, the following shall apply:
6.1 all excess parachute payments within the meaning of Section
280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless, in
the opinion of tax counsel selected by the Company's independent auditors and
acceptable to the Employee, such other payments or benefits (in whole or in
part) described in clause (a) above do not constitute parachute payments or such
excess parachute payments (in whole or in part) represent reasonable
compensation for services actually rendered within the meaning of Section
280(G)(b)(4) of the Code;
6.2 the amount of the Termination Payments which shall be treated as
subject to the Excise Tax shall be equal to the lesser of:
(i) the total amount of the Termination Payments; and
(ii) the amount of excess parachute payments within the
meaning of Sections 280G(b)(1) and (4) (after applying Sections 6.1 and
6.2 above).
6.3 the value of any non-cash benefits or any deferred payment or
benefit shall be determined by the Company's independent auditors in accordance
with the principles of Sections 280G(d)(3) and (4) of the Code; and
6.4 the Employee shall be deemed to pay federal income taxes, and state
and local income taxes in the state and locality of the Employee's residence on
the date of Termination, at the highest marginal rate of income taxation in
effect in the calendar year in which the Gross-Up Payment is to be made, net of
the maximum reduction in federal income taxes which could be obtained from
deduction of such state and local income taxes.
Provided, that in the event the Excise Tax or Withholding Taxes are
subsequently determined to be less than the amounts taken into account hereunder
at the time of the payment of the Withholding Gross-Up Payments or the Excise
Tax Gross-Up Payment, the Employee shall repay the Company the portion of such
payments attributable to such reduction, or in the event that the Excise Tax or
the Withholding Taxes are subsequently determined to exceed the amount taken
into account hereunder at the time of the payment of the Withholding Gross-Up
Payment or the Excise Tax Gross-Up Payment (including by reason of any payment
the existence or amount of which cannot be determined at the time of such
payments), the Company shall make an additional gross-up payment in respect of
such excess, in each case, payment to be made within 30 days after the final
determination of the amount of the reduction or excess, as the case may be,
together with interest thereon at the rate provided in Section 1274(b)(2)(B) of
the Code.
7. Confidentiality. Employee shall hold in a fiduciary capacity for the benefit
of the Company all confidential information and trade secrets (as defined by the
South Carolina Trade Secrets Act) relating to the Company or any of its
affiliated companies, and their respective businesses, which shall have been
Page 7
8
obtained by the Employee during the Employee's employment by the Company or any
of its affiliated companies. After termination of Employee's employment with the
Company, the Employee shall not, without the prior written consent of the
Company or as may otherwise be required by law or legal process, communicate or
divulge any such information, knowledge or data to anyone other than the Company
and those designated by it. Upon the termination or expiration of his employment
hereunder, Employee agrees to deliver promptly to the Company all Company files,
customer lists, management reports, memoranda, research, Company forms,
financial data and reports and other documents supplied to or created by him in
connection with his employment hereunder (including all copies of the foregoing)
in his possession or control and all of the Company's equipment and other
materials in his possession or control.
8. Assignment. The parties acknowledge that this Agreement has been entered into
due to, among other things, the special skills of Employee, and agree that
Employee may not assign any of his rights or delegate any of his duties or
obligations under this Agreement. The rights and obligations of Company under
this Agreement shall inure to the benefit of and shall be binding upon the
successors and assigns of the Company.
9. Notices. All notices, requests, demands, and other communications required or
permitted hereunder shall be in writing and shall be deemed to have been duly
given if delivered or seven days after mailing if mailed, first class, certified
or registered mail, postage prepaid:
To the Company: TriVergent Communications, Inc.
200 N. Main Street
Suite 303
Greenville, SC 29601
To Employee: _____________________________
_____________________________
_____________________________
Any party may change the address to which notices, requests,
demands, and other communications shall be delivered or mailed
by giving notice thereof to the other party in the same manner
provided herein.
10. Provisions Severable. If any provision or covenant, or any part thereof, of
this Agreement should be held by any court to be invalid, illegal or
unenforceable, either in whole or in part, such invalidity, illegality or
unenforceability shall not affect the validity, legality or enforceability of
the remaining provisions or covenants, or any part thereof, of this Agreement,
all of which shall remain in full force and effect.
11. Dispute Resolution.
11.1 Mediation. If a dispute arises out of or in any way relates to
this Agreement or Employee's employment, and if the dispute cannot be settled
through negotiation, the parties agree first to try in good faith to settle the
dispute by mediation before resorting to arbitration, litigation, or some other
formal dispute resolution procedure. Any such dispute shall be submitted to a
mediator selected by mutual agreement of the parties. Unless the parties agree
to an alternative arrangement, the mediator's fee and expenses shall be equally
divided between the parties.
Page 8
9
11.2 Arbitration. Should any dispute arising out of or in any way
relating to this Agreement or Employee's employment or the termination of
Employee's employment not be resolved by negotiation or mediation, the parties
agree to waive their right to a jury trial and agree to submit the dispute to
arbitration. Unless otherwise provided herein, the arbitration shall be
conducted by a single arbitrator in accordance with the National Rules for the
Resolution of Employment Disputes published by the American Arbitration
Association. The arbitration shall be conducted in Greenville County, South
Carolina. The arbitrator shall be selected by mutual agreement of the parties.
If the parties cannot agree on an arbitrator within thirty (30) days after
written request for arbitration is made by one party to the controversy, a
neutral arbitrator shall be appointed according to the procedures set forth in
the American Arbitration Association National Rules for the Resolution of
Employment Disputes. In rendering the award, the arbitrator shall have the
authority to resolve only the legal dispute between the parties, shall not have
the authority to abridge or enlarge substantive rights or remedies available
under existing law, and shall determine the rights and obligations of the
parties according to the substantive and procedural laws of South Carolina. In
addition, the arbitrator's decision and award shall be in writing and signed by
the arbitrator, and accompanied by a written concise explanation of the basis of
the award. The award rendered by the arbitrator shall be final and binding, and
judgment on the award may be entered in any court having jurisdiction thereof.
The arbitrator is authorized to award any party a sum deemed proper for the
time, expense, and trouble of arbitration, including arbitration fees and
attorneys' fees.
11.3 Types of Claims. All legal claims brought by Employee against
Company related to this Agreement, the employment relationship, terms and
conditions of employment, and/or termination from employment are subject to this
dispute resolution procedure. These include, by way of example and without
limitation, any legal claims based on alleged discrimination or retaliation on
the basis of race, sex, religion, national origin, age or disability, whether
based on state or federal law; workers' compensation retaliation; defamation;
invasion of privacy; infliction of emotional distress and/or breach of an
express or implied contract. The above terms notwithstanding, any legal claim
brought by Employee or Company for or relating to workers' compensation,
unemployment compensation benefits, breach, violation or misappropriation of
Company's trade secrets, provisions of any confidentiality agreements or
noncompete agreements, and claims alleging status or membership with regard to
any employment benefit plan are not subject to this dispute resolution
procedure.
12. Waiver. Failure of either party to insist, in one or more instances, on
performance by the other in strict accordance with the terms and conditions of
this Agreement shall not be deemed a waiver or relinquishment of any right
granted in this Agreement or of the future performance of any such term or
condition. No waiver shall be valid unless in writing signed by the party sought
to be bound.
13. Representations. Employee represents and warrants to Company that he is
subject to no agreement or obligation (including, without limitation, any
non-competition or confidentiality agreement) or bound by any contract with any
Person, corporation, or other entity that would prohibit him from taking the
position described herein or in any way interfere with the performance of his
duties and obligations to Company under this Agreement. Employee agrees to hold
Company and its officers, directors, employees, managers, members, shareholders
and agents harmless from any claim (and the expenses associated therewith) by a
third party under a non-competition, confidentiality or similar agreement.
14. Amendments and Modifications. This Agreement may be amended or modified only
by a writing signed by other parties hereto. The parties hereby agree that this
Agreement contains the entire agreement and
Page 9
10
understanding by and between the parties with respect to Employee's employment,
and no representations, promises, agreements, or understandings, written or
oral, relating to the employment of the Employee by the Company not contained
herein shall be of any force or effect.
15. Assignment of Intellectual Property. Employee agrees to promptly disclose to
Company, in writing, all inventions, discoveries and improvements devised by
Employee as part of his employment duties with Company, and hereby transfers and
assigns to Company all rights, title and interest, domestic and foreign, to such
inventions, etc. At the request of Company, Employee will execute, either during
or after his employment with Company, any documents, including applications for
patents and assignments, necessary or desired by Company. Employee will
cooperate with the filing and prosecution of any such patent applications
whenever Company so requests without further compensation. Employee attaches
hereto a complete list of all inventions that Employee made or conceived prior
to his employment by Company, if any exist, and Company agrees that these
inventions shall be excluded from this Agreement.
16. Governing Law. The validity and effect of this agreement shall be governed
by and construed and enforced in accordance with the laws of the State of South
Carolina, without giving effect to South Carolina's rules of conflicts law, and
regardless of the place or places of its physical execution or performance.
17. Captions. The captions contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
18. Counterparts. This Agreement may be executed in one or more counterparts,
all of which taken together shall constitute one instrument.
SIGNATURES ON FOLLOWING PAGE
Page 10
11
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
Witness Employee
- ------------------------------- ----------------------------------------
Daniel Sterling
TRIVERGENT COMMUNICATIONS, INC.
- ------------------------------- By:
-------------------------------------
Its:
------------------------------------
Page 11