EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made as of January 4,
1999 by
Global Access Pagers, Inc., a Nevada corporation (the "Employer"), and
Gary
Killoran, an individual (the "Executive").
RECITALS
Concurrently with the execution and delivery of this Agreement, Employer
(or its
affiliate) (the "Buyer"), is purchasing from the Executive and certain
other
Sellers, all of the issued shares of stock of PhoneXchange, Inc. owned
by each
such Seller and the Executive, pursuant to a Stock Purchase Agreement
dated as
of January 1, 1999 between David Chadwick, James Rott, Paul Hyde and
Gary
Killoran (as Sellers) and the Buyer (the "Stock Purchase Agreement").
The Buyer
and the Employer desire the Executive's continued employment with the
Employer,
and the Executive wishes to accept such continued employment, upon the
terms and
conditions set forth in this Agreement.
AGREEMENT
The parties, intending to be legally bound, agree as follows:
1. DEFINITIONS
For the purposes of this Agreement, the following terms have the
meanings
specified or referred to in this Section 1.
"AGREEMENT"--this Employment Agreement, as amended from time to time.
"BASIC COMPENSATION"--Salary and Benefits.
"BENEFITS"--as defined in Section 3.1(b).
"BOARD OF DIRECTORS"--the board of directors of the Employer.
"CONFIDENTIAL INFORMATION"--any and all:
(a) trade secrets concerning the business and affairs of the
Employer, data,
know-how, graphs, drawings, samples, inventions and ideas,
customer
lists, current and anticipated customer requirements, price
lists,
market studies, business plans, computer software and programs
(including object code and source code), computer software and
database
technologies, systems, structures, and architectures (and
related
concepts, ideas, designs, methods and information), and any
other
information, however documented, that is a trade secret within
the
meaning of California law; and
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(b) information concerning the business and affairs of the Employer
(which
includes historical financial statements, financial projections
and
budgets, historical and projected sales, capital spending
budgets and
plans, the names and backgrounds of key personnel and personnel
training
and techniques and materials), however documented; and
(c) notes, analysis, compilations, studies, summaries, and other
material
prepared by or for the Employer containing or based, in whole or
in
part, on any information included in the foregoing.
"DISABILITY"--as defined in Section 6.2.
"EFFECTIVE DATE"--the date stated in the first paragraph of the
Agreement.
"EMPLOYMENT PERIOD"--the term of the Executive's employment under this
Agreement.
"FISCAL YEAR"--the Employer's fiscal year, as it exists on the Effective
Date
or as changed from time to time.
"FOR CAUSE"--as defined in Section 6.4.
"NONCOMPETITION AGREEMENT"--as defined in Section 6.3.
"PERSON"--any individual, corporation (including any non-profit
corporation),
general or limited partnership, limited liability company, joint
venture,
estate, trust, association, organization, or governmental body.
"POST-EMPLOYMENT PERIOD"--as defined in Section 8.2.
"PROPRIETARY ITEMS"--as defined in Section 7.2(a)(iv).
"SALARY"--as defined in Section 3.1(a).
2. EMPLOYMENT TERMS AND DUTIES
2.1. EMPLOYMENT
The Employer hereby employs the Executive, and the Executive hereby
accepts
employment by the Employer, upon the terms and conditions set forth in
this
Agreement.
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2.2. TERM
Subject to the provisions of Section 6, the term of the Executive's
employment
under this Agreement will be three years, beginning on the Effective
Date and
ending on the third anniversary of the Effective Date.
2.3. DUTIES
The Executive will have such duties as are assigned or delegated to the
Executive by the Board of Directors or Chief Executive Officer, and will
initially serve as Chief Financial Officer of the Employer. The
Executive will
devote substantially all of his business time, attention, skill, and
energy
exclusively to the business of the Employer, will use his best efforts
to
promote the success of the Employer's business, and will cooperate fully
with
the Board of Directors in the advancement of the best interests of the
Employer.
If the Executive is elected as a director of the Employer or as a
director or
officer of any of its affiliates, the Executive will fulfill his duties
as such
director or officer without additional compensation.
3. COMPENSATION
3.1. BASIC COMPENSATION
(a) Salary. The Executive will be paid an annual salary of
$120,000.00,
subject to adjustment as provided below (the "Salary"), which
will be
payable in equal periodic installments according to the
Employer's
customary payroll practices, but no less frequently than
monthly. The
Salary will be reviewed by the Board of Directors not less
frequently
than annually, and may be adjusted upward in the sole discretion
of the
Board of Directors, but in no event will the Salary be increased
less
than 5% per year as long as Employer has positive net income
from
operations.
(b) Benefits. The Executive will, during the Employment Period, be
permitted
to participate in such pension, profit sharing, bonus, life
insurance,
hospitalization, major medical, and other employee benefit plans
of the
Employer that may be in effect from time to time, to the extent
the
Executive is eligible under the terms of those plans
(collectively, the
"Benefits").
4. FACILITIES AND EXPENSES
4.1. GENERAL
The Employer will pay on behalf of the Executive (or reimburse the
Executive
for) reasonable expenses incurred by the Executive at the request of, or
on
behalf of, the Employer in the performance of the Executive's duties
pursuant
to this Agreement, and in accordance with the Employer's employment
policies,
including reasonable expenses incurred by the Executive in attending
conventions, seminars, and other business meetings, in appropriate
business
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entertainment activities, and for promotional expenses. The Executive
must file
expense reports with respect to such expenses in accordance with the
Employer's
policies.
5. VACATIONS AND HOLIDAYS
The Executive will be entitled to paid vacation each Fiscal Year in
accordance
with the vacation policies of the Employer in effect for its executive
officers
from time to time. Vacation must be taken by the Executive at such time
or times
as reasonably approved by the Chairman of the Board or Chief Executive
Officer.
The Executive will also be entitled to the paid holidays set forth in
the
Employer's policies. Vacation days (but not holidays or sick days)
accrued
during any Fiscal Year that are not used by the Executive during such
Fiscal
Year may be used in only the Fiscal Year immediately following the year
in which
such vacation days were accrued, and any vacation days not so used in
either the
year in which they were accrued or the subsequent year shall expire and
be
forfeited.
6. TERMINATION
6.1. EVENTS OF TERMINATION
The Employment Period and the Executive's Basic Compensation, and any
and all
other rights of the Executive under this Agreement or otherwise as an
employee
of the Employer will terminate (except as otherwise provided in this
Section 6):
(a) upon the death of the Executive;
(b) upon the disability of the Executive (as defined in Section 6.2)
immediately upon notice from either party to the other;
(c) for cause (as defined in Section 6.3), immediately upon notice
from the
Employer to the Executive, or at such later time as such notice
may
specify; or
(d) for good reason (as defined in Section 6.4) upon not less than
thirty
days' prior notice from the Executive to the Employer.
6.2. DEFINITION OF DISABILITY
For purposes of Section 6.1, the Executive will be deemed to have a
"disability"
if, for physical or mental reasons, the Executive is unable to perform
the
Executive's duties under this Agreement for 45 consecutive days, or 60
days
during any twelve month period, as determined in accordance with this
Section
6.2, or if, in the event the Company maintains a disability insurance
policy
covering the Executive, the Executive is determined to be disabled
pursuant to
the definition of "disability" as set forth in such disability insurance
policy,
such determination to be made by a medical doctor selected or appointed
by such
insurance company. The Executive must submit to a reasonable number of
examinations by the medical doctor making the determination
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of disability under this Section 6.2, and the Executive hereby
authorizes the
disclosure and release to the Employer of such determination and all
supporting
medical records. If the Executive is not legally competent, the
Executive's
legal guardian or duly authorized attorney-in-fact will act in the
Executive's
stead, under this Section 6.2, for the purposes of submitting the
Executive to
the examinations, and providing the authorization of disclosure,
required under
this Section 6.2.
6.3. DEFINITION OF "FOR CAUSE"
For purposes of Section 6.1, the phrase "for cause" means: (a) the
Executive's
breach of this Agreement or the Noncompetition Agreement entered into
between
the Buyer and the Executive (the "Noncompetition Agreement"); (b) the
Executive's failure to adhere to any written Employer policy if the
Executive
has been given a reasonable opportunity to comply with such policy or
cure his
failure to comply (which reasonable opportunity must be granted during
the
ten-day period preceding termination of this Agreement); (c) the
appropriation
(or attempted appropriation) of a material business opportunity of the
Employer,
including attempting to secure or securing any personal profit in
connection
with any transaction entered into on behalf of the Employer; (d) the
misappropriation (or attempted misappropriation) of any of the
Employer's funds
or property; or (e) the conviction of, the indictment for (or its
procedural
equivalent), or the entering of a guilty plea or plea of no contest with
respect
to, a felony, the equivalent thereof, or any other crime with respect to
which
disclosure would be required in a registration statement, proxy
statement or
annual report pursuant to federal or state securities laws, including,
without
limitation, pursuant to Item 401 or 402 of Regulation S-K.
6.4. DEFINITION OF "FOR GOOD REASON"
For purposes of Section 6.1, the phrase "for good reason" means any of
the
following: (a) The Employer's material breach of this Agreement; or (b)
the
assignment of the Executive without his consent to a position,
responsibilities,
or duties of a materially lesser status or degree of responsibility than
his
position, responsibilities, or duties at the Effective Date.
6.5 TERMINATION PAY
Effective upon the termination of this Agreement, the Employer will be
obligated
to pay the Executive (or, in the event of his death, his designated
beneficiary
as defined below) only such compensation as is provided in this Section
6.5, and
in lieu of all other amounts and in settlement and complete release of
all
claims the Executive may have against the Employer for any amounts due
and owing
to Executive under this agreement. For purposes of this Section 6.5, the
Executive's designated beneficiary will be such individual beneficiary
or trust,
located at such address, as the Executive may designate by notice to the
Employer from time to time or, if the Executive fails to give notice to
the
Employer of such beneficiary, the Executive's estate. Notwithstanding
the
preceding sentence, the Employer will have no duty, in any
circumstances, to
attempt to open an estate on behalf of the Executive, to determine
whether any
beneficiary designated by the Executive is alive or to ascertain the
address of
any such beneficiary, to
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determine the existence of any trust, to determine whether any person or
entity
purporting to act as the Executive's personal representative (or the
trustee of
a trust established by the Executive) is duly authorized to act in that
capacity, or to locate or attempt to locate any beneficiary, personal
representative, or trustee.
(a) Termination by the Executive for Good Reason. If the Executive
terminates this Agreement for good reason, the Employer will pay
the
Executive (i) the Executive's Salary for the remainder, if any,
of the
calendar month in which such termination is effective and for
twelve
consecutive calendar months thereafter.
(b) Termination by the Employer for Cause. If the Employer
terminates this
Agreement for cause, the Executive will be entitled to receive
his
Salary only through the date such termination is effective, and
will not
be entitled to any other compensation for the Fiscal Year during
which
such termination occurs or any subsequent Fiscal Year.
(c) Termination upon Disability. If this Agreement is terminated by
either
party as a result of the Executive's disability, as determined
under
Section 6.2, the Employer will pay the Executive his Salary
through the
remainder of the calendar month during which such termination is
effective and for the three consecutive months thereafter.
(d) Termination upon Death. If this Agreement is terminated because
of the
Executive's death, the Executive will be entitled to receive his
Salary
through the end of the calendar month in which his death occurs.
(e) Benefits. The Executive's accrual of, or participation in plans
providing for, the Benefits will cease at the effective date of
the
termination of this Agreement, and the Executive will be
entitled to
accrued Benefits pursuant to such plans only as provided in such
plans.
To the extent permitted by law, the Executive will not receive,
as part
of his termination pay pursuant to this Section 6, any payment
or other
compensation for any vacation, holiday, sick leave, or other
leave, if
any, which is accrued but unused on the date the notice of
termination
is given under this Agreement.
7. NON-DISCLOSURE COVENANT; EMPLOYEE INVENTIONS
7.1. ACKNOWLEDGMENTS BY THE EXECUTIVE
The Executive acknowledges that (a) during the Employment Period and as
a part
of his employment, the Executive will be afforded access to Confidential
Information; (b) public disclosure of such Confidential Information; (b)
public
disclosure of such Confidential Information could have an adverse effect
on the
Employer and its business; (c) the Buyer has required that the Executive
make
the covenants in this Section 7 as a condition to its purchase of the
Employer's stock; and (d) the provisions of this Section 7 are
reasonable and
necessary to prevent the improper use or disclosure of Confidential
Information.
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7.2 AGREEMENTS OF THE EXECUTIVE
In consideration of the compensation and benefits to be paid or provided
to the
Executive by the Employer under this Agreement, the Executive covenants
as
follows:
(a) Confidentiality.
(1) During and following the Employment Period, the Executive will
hold in
confidence the Confidential Information and will not disclose
it to
any person except with the specific prior written consent of
the
Employer or except as otherwise expressly permitted by the
terms of
this Agreement.
(2) Any trade secrets of the Employer will be entitled to all of
the
protections and benefits under California law and any other
applicable
law. If any information that the Employer deems to be a trade
secret
is found by a court of competent jurisdiction not to be a
trade secret
for purposes of this Agreement, such information will,
nevertheless,
be considered Confidential Information for purposes of this
Agreement.
The Executive hereby waives any requirement that the Employer
submit
proof of the economic value of any trade secret or post a bond
or
other security.
(3) None of the foregoing obligations and restrictions applies to
any part
of the Confidential Information that the Executive
demonstrates was or
became generally available to the public other than as a
result of a
disclosure by the Executive.
(4) The Executive will not remove from the Employer's premises
(except to
the extent such removal is for purposes of the performance of
the
Executive's duties at home or while traveling, or except as
otherwise
specifically authorized by the Employer) any document, record,
notebook, plan, model, component, device, or computer software
or
code, whether embodied in a disk or in any other form
(collectively,
the "Proprietary Items"). The Executive recognizes that, as
between
the Employer and the Executive, all of the Proprietary Items,
whether
or not developed by the Executive, are the exclusive property
of the
Employer. Upon termination of this Agreement by either party,
or upon
the request of the Employer during the Employment Period, the
Executive will return to the Employer all of the Proprietary
Items in
the Executive's possession or subject to the Executive's
control, and
the Executive shall not retain any copies, abstracts,
sketches, or
other physical embodiment of any of the Proprietary Items.
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7.3 DISPUTES OR CONTROVERSIES
The Executive recognizes that should a dispute or controversy arising
from or
relating to this Agreement be submitted for adjudication to any court,
arbitration panel, or other third party, the preservation of the secrecy
of
Confidential Information may be jeopardized. All pleadings, documents,
testimony, and records relating to any such adjudication will be
maintained in
secrecy and will be available for inspection by the Employer, the
Executive, and
their respective attorneys and experts, who will agree, in advance and
in
writing, to receive and maintain all such information in secrecy, except
as may
be limited by them in writing.
8. NON-COMPETITION AND NON-INTERFERENCE
8.1 ACKNOWLEDGMENTS BY THE EXECUTIVE
The Executive acknowledges that: (a) the services to be performed by him
under
this Agreement are of a special, unique, unusual, extraordinary, and
intellectual character; (b) the Employer's business is international in
scope
and its products are marketed throughout the United States and
internationally;
(c) the Employer competes with other businesses that are or could be
located in
any part of the United States or internationally; (d) the Buyer has
required
that the Executive make the covenants set forth in this Section 8 as a
condition
to the Buyer's purchase of the Executive's stock in the Employer; and
(e) the
provisions of this Section 8 are reasonable and necessary to protect the
Employer's business.
8.2 COVENANTS OF THE EXECUTIVE
In consideration of the acknowledgments by the Executive, and in
consideration
of the compensation and benefits to be paid or provided to the Executive
by the
Employer, the Executive covenants that he will not, directly or
indirectly:
(a) during the Employment Period, except in the course of his
employment
hereunder, and during the Post-Employment Period, engage or invest
in, own,
manage, operate, finance, control, or participate in the ownership,
management, operation, financing, or control of, be employed by,
associated
with, or in any manner connected with, lend the Executive's name or
any
similar name to, lend Executive's credit to or render services or
advice
to, any business whose products or activities compete in whole or
in part
with the products or activities of the Employer anywhere within the
United
States or any other jurisdiction in which the Employer then
conducts
business; provided, however, that the Executive may purchase or
otherwise
acquire up to (but not more than) 4.99 percent of any class of
securities
of any enterprise (but without otherwise participating in the
activities of
such enterprise) if such securities are listed on any national or
regional
securities exchange or have been registered under Section 12(g) of
the
Securities Exchange Act of 1934; provided, further, that this
provision
shall not apply to any interest or investment in any business owned
by
Executive as of January 1, 1999 (an "Owned Company") as long as (i)
any
activity associated with, or business time of Executive devoted to,
such
investment
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does not materially interfere with Executive's duties hereunder,
(ii) no
confidential information belonging to, or regarding, Employer is
used by
Executive or such business, or disclosed to any employee, officer
or
director of such business, to the benefit of such business or the
material
detriment of Employer, and (iii) the nature of the business
conducted by
such business does not materially change from that conducted by
such
business as of January 1, 1999, which change would cause such
business to
compete more directly and materially with Employer.
(b) whether for the Executive's own account or for the account of any
other
person, at any time during the Employment Period and the Post-
Employment
Period, solicit business of the same or similar type being carried
on by
the Employer, from any person known by the Executive to be a
customer of
the Employer, whether or not the Executive had personal contact
with such
person during and by reason of the Executive's employment with the
Employer;
(c) whether for the Executive's own account or the account of any other
person
(i) at any time during the Employment Period and the Post-
Employment
Period, solicit, employ, or otherwise engage as an employee,
independent
contractor, or otherwise, any person who is or was an employee of
the
Employer at any time during the Employment Period or in any manner
induce
or attempt to induce any employee of the Employer to terminate his
employment with the Employer; or (ii) at any time during the
Employment
Period and for three years thereafter, interfere with the
Employer's
relationship with any person, including any person who at any time
during
the Employment Period was an employee, contractor, supplier, or
customer of
the Employer; or
(d) at any time during or after the Employment Period, disparage the
Employer
or any if its shareholders, directors, officers, employees, or
agents.
For purposes of this Section 8.2, the term "Post-Employment Period"
means the
two year period beginning on the date of termination of the Executive's
employment with the Employer.
If any covenant in this Section 8.2 is held to be unreasonable,
arbitrary, or
against public policy, such covenant will be considered to be divisible
with
respect to scope, time, and geographic area, and such lesser scope,
time, or
geographic area, or all of them, as a court of competent jurisdiction
may
determine to be reasonable, not arbitrary, and not against public
policy, will
be effective, binding, and enforceable against the Executive.
The period of time applicable to any covenant in this Section 8.2 will
be
extended by the duration of any violation by the Executive of such
covenant.
The Executive will, while the covenant under this Section 8.2 is in
effect, give
notice to the Employer, within ten days after accepting any other
employment, of
the identity of the Executive's employer. The Buyer or the Employer may
notify
such employer that the Executive is bound by this Agreement and, at the
Employer's election, furnish such employer with a copy of this Agreement
or
relevant portions thereof.
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Notwithstanding anything herein to the contrary, the provisions of this
Section
8 shall not apply in the event Executive terminates this Agreement for
good
reason or if this agreement is terminated by Employer for any reason
other than
good cause.
9. INDEMNIFICATION AND INSURANCE
9.1. The Employer shall indemnify and hold harmless, and in any action,
suit or
proceeding, and defend the Executive against all expenses, costs,
liabilities and losses (including attorneys fees, judgments and
fines, and
amounts paid or to be paid in any settlement) (collectively,
"Indemnified
Amounts") reasonably incurred or suffered by the Executive in
connection
with the Executive's service as a director or officer of the
Employer or
any affiliate (including without limitation phoneXchange, Inc.,
and in the
case of phoneXchange, Inc., as a controlling shareholder) to the
full
extent permitted by the By-Laws of the Employer as in effect on
the date
of this Agreement and the Delaware General Corporation Law (or, in
the
event the Employer is reincorporated in a jurisdiction other than
Delaware, the general corporation law of such jurisdiction (the
"GCL").
The defense of Executive pursuant to this provision shall be by
counsel
reasonably satisfactory to Executive, and the fees and expenses of
such
counsel shall be paid by Employer as incurred.
9.2. A determination that indemnification with respect to any claims by
the
Executive pursuant to this Section 9 is proper shall be made by
independent legal counsel selected by the Board of Directors of
the
Employer and set forth in a written opinion furnished by such
counsel to
the Board of Directors, the Employer and the Executive. In the
event it
is determined by such counsel that Executive is not entitled to
indemnification pursuant to this Section 9 (and if contested by
Executive, such determination is confirmed by the final non-
appealable
order of a court of competent jurisdiction), or if a court of
competent
jurisdiction determines in a final non-appealable order that
Executive is
not entitled to indemnification pursuant to this Section 9,
Executive
hereby undertakes that he shall promptly reimburse the Employer
for all
advances of Indemnified Amounts made by the Employer on
Executive's
behalf.
9.3 The rights conferred by this Section 9 shall not be exclusive of
any
other right which the Executive may have or hereafter acquire
under
applicable law, any provision of the Employers organizational
documents or
a vote of stockholders or the board of directors. This Section 9
shall
not be deemed to affect any rights to subrogation which may exist
in any
policy of director and officers liability insurance.
9.4 The Executive shall provide notice to the Employer in writing
promptly
(and in any event within 15 business days) of the institution of
any
action, suit or proceeding which is or may be subject to this
Section 9,
provided that Executive's failure to so advise the Employer shall
not
affect the indemnification provided for herein, except to the
extent such
failure has a material and adverse effect on the Employer's
ability to
defend such action, suit or proceeding.
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9.5. The Executive shall be covered by insurance, to the same extent
as to
other senior executives and directors of the Employer are
covered by
insurance, with respect to (a) directors and officer's
liability, (b)
errors and omissions, and (c) general liability insurance.
10. GENERAL PROVISIONS
10.1. INJUNCTIVE RELIEF AND ADDITIONAL REMEDY
The Executive acknowledges that the injury that would be suffered by the
Employer as a result of a breach of the provisions of this Agreement
(including
any provision of Sections 7 and 8) would be irreparable and that an
award of
monetary damages to the Employer for such a breach would be an
inadequate
remedy. Consequently, the Employer will have the right, in addition to
any
other rights it may have, to obtain injunctive relief to restrain any
breach or
threatened breach or otherwise to specifically enforce any provision of
this
Agreement, and the Employer will not be obligated to post bond or other
security in seeking such relief. Without limiting the Employer's rights
under
this Section 10 or any other remedies of the Employer, if the Executive
breaches any of the provisions of Section 7 or 8, the Employer will have
the
right to cease making any payments otherwise due to the Executive under
this
Agreement.
10.2. COVENANTS OF SECTIONS 7 and 8 ARE ESSENTIAL AND INDEPENDENT
COVENANTS
The covenants by the Executive in Sections 7 and 8 are essential
elements of
this Agreement, and without the Executive's agreement to comply with
such
covenants, the Buyer would not have purchased the Executive's stock
under the
Stock Purchase Agreement and the Employer would not have entered into
this
Agreement or employed or continued the employment of the Executive. The
Employer and the Executive have independently consulted their respective
counsel and have been advised in all respects concerning the
reasonableness and
propriety of such covenants, with specific regard to the nature of the
business
conduced by the Employer.
The Executive's covenants in Sections 7 and 8 are independent covenants
and the
existence of any claim by the Executive against the Employer under this
Agreement or otherwise, or against the Buyer, will not excuse the
Executive's
breach of any covenant in Section 7 or 8.
If the Executive's employment hereunder expires or is terminated, this
Agreement
will continue in full force and effect as is necessary or appropriate to
enforce the covenants and agreements of the Executive in Sections 7 and
8.
10.3. OFFSET
The Employer will be entitled to offset against any and all amounts
owing to
the Executive under this Agreement the amount of any and all undisputed
claims
or claims reduced to final judgment
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that the Employer may have against the Executive under the Stock
Purchase
Agreement or the Noncompetition Agreement.
10.4. REPRESENTATIONS AND WARRANTIES BY THE EXECUTIVE
The Executive represents and warrants to the Employer that the execution
and
delivery by the Executive of this Agreement do not, and the performance
by the
Executive of the Executive's obligations hereunder will not, with or
without the
giving of notice or the passage of time, or both: (a) violate any
judgment,
writ, injunction, or order of any court, arbitrator, or governmental
agency
applicable to the Executive; or (b) conflict with, result in the breach
of any
provisions of or the termination of, or constitute a default under, any
agreement to which the Executive is a party or by which the Execute is
or may be
bound.
10.5. OBLIGATIONS CONTINGENT ON PERFORMANCE
The obligations of the Employer hereunder, including its obligation to
pay the
compensation provided for herein, are contingent upon the Executive's
performance of the Executive's obligations hereunder.
10.6. WAIVER
The rights and remedies of the parties to this Agreement are cumulative
and not
alternative. Neither the failure nor any delay by either party in
exercising any
right, power, or privilege under this Agreement will operate as a waiver
of such
right, power, or privilege, and no single or partial exercise of any
such right,
power, or privilege will preclude any other or further exercise of such
right,
power, or privilege or the exercise of any other right, power, or
privilege. To
the maximum extent permitted by applicable law, (a) no claim or right
arising
out of this Agreement can be discharged by one party, in whole or in
part, by a
waiver or renunciation of the claim or right unless in writing signed by
the
other party; (b) no waiver that may be given by a party will be
applicable
except in the specific instance for which it is given; and (c) no notice
to or
demand on one party will be deemed to be a waiver of any obligation of
such
party or of the right of the party giving such notice or demand to take
further
action without notice or demand as provided in this Agreement.
10.7. BINDING EFFECT; DELEGATION OF DUTIES PROHIBITED
This Agreement shall inure to the benefit of, and shall be binding upon,
the
parties hereto and their respective successors, assigns, heirs, and
legal
representatives, including any entity with which the Employer may merge
or
consolidate or to which all or substantially all of its assets may be
transferred. The duties and covenants of the Executive under this
Agreement,
being personal, may not be delegated.
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10.8. NOTICES
All notices, consents, waivers, and other communications under this
Agreement
must be in writing and will be deemed to have been duly given when (a)
delivered by hand (with written confirmation of receipt), (b) sent by
facsimile
(with written confirmation of receipt), provided that a copy is mailed
by
registered mail, return receipt requested, or (c) when received by the
addressee, if sent by a nationally recognized overnight delivery service
(receipt requested), in each case to the appropriate addresses and
facsimile
numbers set forth below (or to such other addresses and facsimile
numbers as a
party may designate by notice to the other parties):
If to Employer:
Global Access Pagers, Inc.
c/o Corporate Financial Enterprises, Inc.
2224 Main Street
Santa Monica, California 90405
Telephone: (310) 452-1005
Facsimile: (310) 581-6806
If to the Executive:
Gary Killoran
PhoneXchange, Inc.
4685 MacArthur Court, Suite 300
Newport Beach, California 92660
Telephone: (949) 737-1500
Facsimile: (949) 794-8887
10.9 ENTIRE AGREEMENT; AMENDMENTS
This Agreement, the Stock Purchase Agreement, and the documents executed
in
connection with the Stock Purchase Agreement, contain the entire
agreement
between the parties with respect to the subject matter hereof and
supersede all
prior agreements and understandings, oral or written, between the
parties
hereto with respect to the subject matter hereof. This Agreement may not
be
amended orally, but only by an agreement in writing signed by the
parties
hereto.
10.10 GOVERNING LAW
This Agreement will be governed by the laws of the State of California
without
regard to conflicts of laws principles.
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IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as
of the date above first written above.
GLOBAL ACCESS PAGERS, INC. EXECUTIVE
By: /s/ CHARLES MCGUIRK /s/ GARY KILLORAN
------------------------------ --------------------------------
Name:
Title:
