JATO COMMUNICATIONS CORP.
FOUNDERS EMPLOYMENT TRANSITION AND SEPARATION AGREEMENT
FOR
BRIAN E. GAST
THIS FOUNDERS EMPLOYMENT TRANSITION AND SEPARATION AGREEMENT
("AGREEMENT") is entered into as of the 10th day of February, 2000 ("Execution
Date") by and between BRIAN E. GAST ("Mr. Gast") and JATO COMMUNICATIONS CORP.,
a Delaware corporation (the "Company").
RECITALS
WHEREAS, Mr. Gast has been employed by the Company as its President and
Chief Executive Officer; and
WHEREAS, the Company and Mr. Gast are parties to an employment
agreement dated April 16, 1999; and
WHEREAS, the Company has materially reduced the job responsibilities of
Mr. Gast; and
WHEREAS, as a result of the material reduction of his job
responsibilities, Mr. Gast has tendered his resignation with the Company under
the terms and conditions hereinafter set forth; and
WHEREAS, the Company has accepted Mr. Gast's resignation as President
and Chief Executive Officer; and
WHEREAS, the Company and Mr. Gast desire to replace the terms of the
April 16, 1999 Employment Agreement; and
WHEREAS, the Company wishes to employ Mr. Gast in the capacity and
under the terms and conditions hereinafter set forth, and Mr. Gast is willing to
be so employed by the Company.
NOW, THEREFORE, in consideration of the recitals set forth above that
are incorporated by reference herein and the mutual promises and covenants
contained herein, it is hereby agreed by and between the parties hereto as
follows:
AGREEMENT
1. RESIGNATION. Mr. Gast has tendered and the Company has accepted Mr. Gast's
resignation as President and Chief Executive Officer and any and all other
positions he may have held with the Company or any affiliates or subsidiaries of
the Company.
2. CONTINUED EMPLOYMENT BY THE COMPANY. Mr. Gast will continue as an employee of
the Company until such time as his employment is terminated as set forth in
paragraph 6 herein. From the Execution Date through the Separation Date, as
defined in paragraph 6 below, Mr. Gast shall be available to provide such
services as are requested by the Company's Board of Directors.
2.1 COMPENSATION. The Company agrees to continue to compensate Mr. Gast
at the same rate of regular salary he received as of the Execution Date, less
all applicable deductions and withholdings, payable on a semi-monthly basis or
in accordance with the Company's customary practices (as they may be changed by
the Company from time to time in its sole discretion).
2.2 BENEFITS. The Company shall continue to make available to Mr. Gast
all Company benefits available and received by Mr. Gast immediately before the
Execution Date. Notwithstanding the prior sentence, Mr. Gast agrees and
acknowledges that from the Execution Date through the Separation Date, Mr. Gast
is not entitled to nor will he accrue any vacation time, holiday leave or sick
leave.
2.3 RESTRICTED STOCK. As of the Execution Date, Mr. Gast owns or is
deemed to be the beneficial owner of 2,305,334 shares of Common Stock, of which
641,600 were vested and 1,613,734 not yet vested. Unless Mr. Gast voluntarily
resigns as an employee or is terminated for Cause (as defined below) prior to
such date, the 1,613,734 unvested shares will vest the earlier of the Company's
initial public offering or in two equal installments of 806,867 shares on each
of March 31, 2000 and June 30, 2000.
2.4 VOLUME LIMITATION. Should the Company launch a $130 million initial
public offering (IPO"), $5 million will be allocated for the sale of a portion
of the Founders' shares (for purposes herein the term "Founders" refers to Bruce
E. Dines, Leonard Allsup and Brian E. Gast). The portion of the offering
allocated for the sale of the Founders' shares can be utilized only after the
Company has raised $125 million in gross proceeds. If, due to strong market
conditions, the size of the offering is increased above $130 million, 50% of
such increase will be allocated for the sale of additional Founders' shares. .
If the Company raises at least $125 million in gross proceeds and if the
underwriter's over allotment option (the "Greenshoe") is exercised, 50% of the
Greenshoe will also be allocated for the sale of the Founders' shares. Mr. Gast
and the other Founders, in addition to being bound by the standard 180 day
lockup agreement (the "Standard Lockup"), also agree that the number of shares
the Founders can sell during the 180 day period following the expiration of the
Standard Lockup ("the Additional Lockup") will be limited (the "Volume
Limitation Period"). The terms of the Volume Limitation Period are as follows:
(a) The Founders will be limited to the sale of an aggregate
of 750,000 shares every three months during the Volume Limitation Period. The
Founders shall be solely responsible for allocating the number of shares each
Founder will be permitted to sell per each three month period during the Volume
Limitation Period. However, if the Founders are not permitted to sell at least
$5 million of securities during the IPO, the three month period limitation will
be increased from 750,000 shares to 875,000 shares per each three month period.
Shares
sold under this provision may be sold in only broadly distributed underwritten
public offerings or normal Rule 144 open market transactions.
(b) As long as Mr. Gast maintains ownership in the Company Mr.
Gast shall also be bound by the following restrictions:
(i) to not knowingly sell his shares of the Company
stock to a person or group who, as a result of such sale, would own 5% or more
of the Company's outstanding stock or to directly or indirectly solicit any
person or group to purchase from him or any other Founder shares in the Company
if such person or group, as a result of such purchase, would own 5% or more of
the Company's outstanding stock; and
(ii) to not knowingly sell his shares of the Company
stock to a Company competitor (as defined in paragraph 8.1) or to directly or
indirectly solicit any competitor (as defined in paragraph 8.1) to purchase from
him shares in the Company; and
(iii) to not engage in, or support, a hostile proxy
solicitation.
2.5 FORGIVENESS OF NOTE. The Company loaned to Mr. Gast the amount of
$100,000, pursuant to that certain promissory note (the "Note"). Unless Mr.
Gast's employment with the Company is terminated for Cause, as defined herein,
or if Mr. Gast voluntarily terminates his employment, in each case prior to
March 31, 2000, the Company agrees to forgive all outstanding amounts payable,
including interest, on said Note and after said date, Mr. Gast's obligations of
repayment under the Note shall cease effective on March 31, 2000. Mr. Gast
acknowledges that he is solely responsible for all tax consequences relating to
the forgiveness of the Note.
2.6 VACATION PAY-OUT. The parties agree that on the Separation Date the
accrued but unused vacation shall be 20 days.
2.7 SEPARATION AND RELEASE AGREEMENT. As part of this Agreement, Mr.
Gast agrees to enter into the Separation and Release Agreement attached hereto
as Exhibit B, within the time set forth in said Separation and Release
Agreement.
3. POLICIES AND PROCEDURES. Mr. Gast agrees that he is subject to and will
comply with the policies and procedures of the Company, as such policies and
procedures may be modified, added to or eliminated from time to time at the sole
discretion of the Company Board of Directors, except to the extent any such
policy or procedure specifically conflicts with the express terms of this
Agreement. Mr. Gast further agrees and acknowledges that any written or oral
policies and procedures of the Company do not constitute contracts between the
Company and Mr. Gast.
4. PROPRIETARY INFORMATION OBLIGATIONS.
4.1 AGREEMENT. Except as set forth herein, Mr. Gast agrees to continue
to abide by Mr. Gast's previously executed Non-Competition, Proprietary
Information and Inventions Agreement attached hereto as EXHIBIT A.
4.2 REMEDIES. Mr. Gast's duties under the Non-Competition, Proprietary
Information and Inventions Agreement shall survive termination of his employment
with the Company. Mr. Gast acknowledges that a remedy at law for any breach or
threatened breach by him of the provisions of the Non-competition, Proprietary
Information and Inventions Agreement would be inadequate, and he therefore
agrees that the Company shall be entitled to injunctive relief in case of any
such breach or threatened breach. By seeking injunctive relief the Company does
not waive any other rights or remedies it may have.
5. OUTSIDE ACTIVITIES. Except with the prior written consent of the Company's
Board of Directors, Mr. Gast will not, from the Execution Date through the
Separation Date, undertake or engage in any other employment, occupation or
business enterprise, other than those in which Mr. Gast is a passive investor,
non-executive board member or which takes less than 10% of Mr. Gast's business
time. Mr. Gast may engage in civic and not-for-profit activities so long as such
activities do not materially interfere with the performance of his duties
hereunder.
6. TERMINATION OF EMPLOYMENT. Either Mr. Gast or the Company may terminate the
employment relationship at any time for any reason whatsoever, with thirty (30)
days prior written notice by the Company and with thirty (30) days' prior
written notice by Mr. Gast with or without Cause or advance notice. This at-will
employment relationship cannot be changed except in a writing approved by the
Board. Notwithstanding this at-will employment relationship, Mr. Gast's
employment with the Company shall automatically terminate upon the earlier of
the closing of the Company's initial public offering or on June 30, 2000.
Whether terminated for cause, without cause, automatically as provided in the
previous sentence or voluntarily terminated by Mr. Gast, such termination is
defined herein as the "Separation Date." Mr. Gast shall remain as a member of
the Board of Directors of the Company and the member of the Board of Directors
of any affiliates or subsidiaries of the Company until June 30, 2000. On June
30, 2000, Mr. Gast agrees to tender his resignation from the Board of Directors
of the Company and from the Board of Directors of any affiliates or subsidiaries
of the Company.
6.1 SEVERANCE PAYMENT. If the Company terminates Mr. Gast's employment
without Cause at any time or if Mr. Gast employment terminates automatically as
set forth in paragraph 6 herein, Mr. Gast will receive as severance: (i) a lump
sum payment equal to one (1) year of base salary, less payroll deductions and
required withholdings pursuant to the Separation Agreement attached as Exhibit
B, (ii) a lump sum payment of that portion of the bonus Mr. Gast is entitled to
for the calendar year pro-rated based upon the number of full months Mr. Gast
was employed in such year pursuant to the Separation Agreement attached as
Exhibit B, (iii) continuation of all company benefits for a period of one (1)
year pursuant to the Separation Agreement attached as Exhibit B, and (iv)
termination of all repurchase rights on Mr. Gast's stock, in exchange for the
execution of a release of all claims against the Company in the form attached as
Exhibit B; PROVIDED, THAT, in the event of termination due to Disability, this
subsection (iv) shall apply only with respect to 50% of any unvested stock held
by Mr. Gast on the date of termination and with respect to the waiver of
repurchase rights of 50% of any unvested shares held by Mr. Gast on the date of
termination; PROVIDED, FURTHER, that Mr. Gast shall remain a party to, and
subject to the provisions of, the Investors' Rights Agreement. If Mr. Gast
voluntarily resigns or if Mr. Gast's employment is terminated for Cause, all
compensation and benefits will cease immediately and Mr. Gast will receive no
severance benefits.
6.2 CAUSE. For purposes of this Agreement, "CAUSE" shall mean
misconduct, including: (i) conviction of any felony or any crime involving moral
turpitude or dishonesty; (ii) participation in a fraud or act of dishonesty
against the Company; (iii) willful breach of the Company's policies; (iv)
intentional damage to the Company's property; (v) material breach of this
Agreement or Mr. Gast's Proprietary Information and Inventions Agreement; (vi) a
failure or refusal in a material respect of Mr. Gast to follow the reasonable
policies or directions of the Company as specified by the Board of Directors
after being provided with notice of such failure and an opportunity to cure
within seven (7) days of receipt of such notice; or (vii) failure to carry out
the duties of the Mr. Gast's position after being provided with notice of such
failure and an opportunity to cure. Disability shall not constitute "Cause."
6.3 DISABILITY. For purposes of this Agreement, "DISABILITY" shall mean
a disability that prevents Mr. Gast from substantially performing his duties
under this Agreement for a period of at least 90 consecutive days or 180
non-consecutive days within any 365-day period.
6.4 DEATH. In the event of death, the Company shall pay to Mr. Gast's
estate any earned but unpaid salary at the time of death and, at the time such
amount would otherwise have been due, a pro rata portion of a discretionary
bonus, if any, which may otherwise have been paid to Mr. Gast with respect to
the annual period in which the death occurs. Furthermore, the Company shall
waive its repurchase rights with respect to 50% of any unvested shares as of the
date of death; PROVIDED, HOWEVER, that Mr. Gast's estate, administrator or
distributor shall become a party to, and be subject to the provisions of, the
Investors' Rights Agreement. In addition, the acceleration provisions set forth
in paragraph 2.3 herein shall remain in effect, PROVIDED, HOWEVER, that Mr.
Gast's estate, administrator or distributor shall become a party to, and be
subject to the provisions of, this Agreement.
7. BUSINESS EXPENSE REIMBURSEMENT. The Company agrees to reimburse Mr. Gast for
those reasonable business expenses he necessarily incurs in his capacity as a
Company employee and member of the Board of Directors consistent with the
Company's policies in this regard. Mr. Gast must submit the necessary
documentation establishing the amount, date and reason for expenses he incurred
and for which he seeks reimbursement.
8. NON-COMPETITION AND NON-SOLICITATION. Mr. Gast acknowledges that prior to the
Separation Date, the Company employed him, among other things, as a member of
executive and management personnel. Mr. Gast further acknowledges that during
his employment at the Company, he was and will be privy to extremely sensitive,
confidential and valuable commercial information, which constitutes trade
secrets belonging to the Company, the disclosure of which information and
secrets would greatly harm the Company.
8.1 NON-COMPETITION COVENANT. As a reasonable measure to protect the
Company from the harm of such disclosure and use of its information and trade
secrets against it, Mr. Gast agrees to the following as part of this Agreement:
Mr. Gast agrees that he shall not, individually or together with others,
directly or indirectly, during his employment with the Company and for a period
of twelve (12) months from the Separation Date, for any reason, whether as an
owner, consultant, partner, joint venturer, stockholder, broker, agent,
financial agent, principal, trustee, licensor or in any other capacity
whatsoever, own, manage, operate, join, control, finance or participate in the
ownership, management, operation, control or financing of, or be connected as
an officer, director, employee, partner, principal, agent, representative,
consultant, licensor, licensee or otherwise with, any business or enterprise in
any city, county, or state of the United States, or any other locality, region,
territory, country, or jurisdiction, which provides high speed data transmission
services in a market in which the Company has at least one (1) operational DSLAM
or at least one (1) central office location under construction as of the
Separation Date. An acquisition or ownership of less than 5% of the outstanding
shares of any publicly traded company will not constitute a violation of this
Agreement.
8.2 NON-SOLICITATION COVENANT. As a reasonable measure to protect the
Company from the harm of such disclosure and use of its information and trade
secrets against it, the parties agree to the following as part of this
Agreement: Mr. Gast acknowledges and agrees that information regarding employees
of the Company is Confidential Information, including without limitation, the
names of the Company employees; information regarding the skills and knowledge
of employees of the Company; information regarding any past, present, or
intended compensation, benefits, policies and incentives for employees of the
Company; and information regarding the management and reporting structure of the
Company. Mr. Gast agrees that he will not, individually or with others, directly
or indirectly (including without limitation, individually or through any
business, venture, proprietorship, partnership, or corporation in which they
control or own more than a five (5) percent interest, through any agents,
through any contractors, through recruiters, by their successors, by their
employees, or by their assigns) hire, solicit, or induce any employee of the
Company to leave the Company during the period Mr. Gast is employed by the
Company and for a period of twelve (12) months from the Separation Date. Mr.
Gast further agrees that during the period he is employed by the Company and for
a period of twelve (12) months from the Separation Date, he will not, either
directly or indirectly, solicit or attempt to solicit any customer, client,
supplier, investor, vendor, consultant or independent contractor of the Company
to terminate, reduce or negatively alter his, her or its relationship with the
Company. The geographic scope of the covenants in this paragraph shall include
any city, county, or state of the United States and any such other city,
territory, country, or jurisdiction in which the Company does business. Nothing
in this paragraph should be construed to narrow the obligations of Mr. Gast
imposed by any other provision herein, any other agreement, law or other source.
8.3 REASONABLE. Mr. Gast agrees and acknowledges that the time
limitation and the geographic scope on the restrictions in this paragraph 8 and
its subparts are reasonable. Mr. Gast also acknowledges and agrees that the
limitation in this paragraph 8 and its subparts is reasonably necessary for the
protection of the Company, that through this Agreement he shall receive adequate
consideration for any loss of opportunity associated with the provisions herein,
and that these provisions provide a reasonable way of protecting the Company's
business value which was imparted to him. In the event that any term, word,
clause, phrase, provision, restriction, or section of this paragraph 8 of this
Agreement is more restrictive than permitted by the law of the jurisdiction in
which the Company seeks enforcement thereof, the provisions of this Agreement
shall be limited only to that extent that a judicial determination finds the
same to be unreasonable or otherwise unenforceable. Moreover, notwithstanding
any judicial determination that any term, word, clause, phrase, provision,
restriction, or section of this Agreement is not specifically enforceable, the
parties intend that the Company shall nonetheless be entitled to recover
monetary damages as a result of any breach hereof.
8.4 LEGAL AND EQUITABLE REMEDIES. In view of the nature of the rights
in goodwill, employee relations, trade secrets, and business reputation and
prospects of the Company to be protected under this paragraph 8 of this
Agreement, Mr. Gast understands and agrees that the Company could not be
reasonably or adequately compensated in damages in an action at law for Mr.
Gast's breach of his obligations hereunder. Accordingly, Mr. Gast specifically
agrees that the Company shall be entitled to temporary and permanent injunctive
relief, specific performance, and other equitable relief to enforce the
provisions of this paragraph 8 of this Agreement and that such relief may be
granted without the necessity of proving actual damages, and without bond. MR.
GAST ACKNOWLEDGES AND AGREES THAT THE PROVISIONS IN THIS PARAGRAPH 8 AND ITS
SUBPARTS ARE ESSENTIAL AND MATERIAL TO THIS AGREEMENT, AND THAT UPON BREACH OF
THIS PARAGRAPH 8 BY HIM, THE COMPANY IS ENTITLED TO WITHHOLD PROVIDING PAYMENTS
OR CONSIDERATION, TO EQUITABLE RELIEF TO PREVENT CONTINUED BREACH, TO RECOVER
DAMAGES AND TO SEEK ANY OTHER REMEDIES AVAILABLE TO THE COMPANY. This provision
with respect to injunctive relief shall not, however, diminish the right of the
Company to claim and recover damages or other remedies in addition to equitable
relief.
8.5 EXTENSION OF TIME. In the event that Mr. Gast breaches any
covenant, obligation or duty in this paragraph 8 or its subparts, any such duty,
obligation, or covenants to which the parties agreed by this paragraph 8 and its
subparts shall automatically toll from the date of the first breach, and all
subsequent breaches, until the resolution of the breach through private
settlement, judicial or other action, including all appeals. The duration and
length of Mr. Gast's duties and obligations as agreed by this paragraph 8 and
its subparts shall continue upon the effective date of any such settlement, or
judicial or other resolution.
9. GENERAL PROVISIONS.
9.1 NOTICES. Any notices provided hereunder must be in writing and
shall be deemed effective upon the earlier of personal delivery (including
personal delivery by telex) or the third day after mailing by first class mail,
to the Company at its primary office location and to Mr. Gast at his address as
listed on the Company's then current payroll records.
9.2 TAX CONSEQUENCES. Mr. Gast agrees to indemnify the Company and hold
the Company harmless from any and all claims or penalties asserted against the
Company for any failure to pay taxes due on any consideration provided by the
Company pursuant to this Agreement. Mr. Gast expressly acknowledges that the
Company has not made, nor herein makes, any representation about the tax
consequences of any consideration provided by the Company to Mr. Gast pursuant
to this Agreement.
9.3 COOPERATION. Mr. Gast agrees to fully cooperate with the Company
with respect to its corporate relationships. Mr. Gast further agrees to
cooperate with the Company in connection with any defense of or prosecution by
the Company regarding any litigation in which the Company may be involved as a
party or non-party in from time to time.
9.4 NON-DISPARAGEMENT. Mr. Gast and the Company agree that neither
party will at any time disparage the other to third parties in any manner likely
to be harmful to the other party, their business reputation, or the personal or
business reputation of its directors, shareholders and/or employees.
Notwithstanding the prohibition in the preceding sentence, each party shall
respond accurately and fully to any question, inquiry, or request for
information when required by legal process, or when posed by a governmental
entity
9.5 THE COMPANY PROPERTY. Unless authorized by the Company, on the
Separation Date, Mr. Gast agrees to return to the Company all Company documents
(and all copies thereof) and any and all other Company property in Mr. Gast's
possession, custody or control, including, but not limited to, financial
information, customer information, customer lists, employee lists, Company
files, notes, cellular telephones, personal computers, personal computers,
contracts, drawings, records, business plans and forecasts, financial
information, specifications, computer-recorded information, software, tangible
property, credit cards, entry cards, identification badges and keys, and any
materials of any kind which contain or embody any proprietary or confidential
material of the Company (and all reproductions thereof).
9.6 SEVERABILITY. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provisions had never been contained herein.
9.7 WAIVER. If either party should waive any breach of any provisions
of this Agreement, he or it shall not thereby be deemed to have waived any
preceding or succeeding breach of the same or any other provision of this
Agreement.
9.8 COMPLETE AGREEMENT. This Agreement and EXHIBITS A AND B hereto,
constitute the entire agreement between Mr. Gast and the Company and it is the
complete, final, and exclusive embodiment of their agreement with regard to this
subject matter. This Agreement supersedes and replaces the Employment Agreement
dated April 16, 1999. It is entered into without reliance on any promise or
representation other than those expressly contained herein, and it cannot be
modified or amended except in a writing signed by an officer of the Company.
9.9 COUNTERPARTS. This Agreement may be executed in separate
counterparts, any one of which need not contain signatures of more than one
party, but all of which taken together will constitute one and the same
Agreement.
9.10 HEADINGS. The headings of the sections hereof are inserted for
convenience only and shall not be deemed to constitute a part hereof nor to
affect the meaning thereof.
9.11 SUCCESSORS AND ASSIGNS. This Agreement is intended to bind and
inure to the benefit of and be enforceable by Mr. Gast and the Company, and
their respective successors, assigns, heirs, executors and administrators,
except that Mr. Gast may not assign any of his duties hereunder and he may not
assign any of his rights hereunder without the written consent of the Company,
which shall not be withheld unreasonably.
9.12 ATTORNEY FEES. If either party hereto brings any action to enforce
his or its rights hereunder, the prevailing party in any such action shall be
entitled to recover his or its reasonable attorneys' fees and costs incurred in
connection with such action.
9.13 CHOICE OF LAW. All questions concerning the construction, validity
and interpretation of this Agreement will be governed by the law of the State of
Colorado.
9.14 SURVIVAL. The following provisions of this Agreement shall survive
the termination of Mr. Gast's employment as an employee or independent
contractor and the assignment of this Agreement by the Company to any successor
in interest or other assignee: Sections 2.4, 4, 8, and 9.
9.15 INJUNCTIVE RELIEF. Mr. Gast acknowledges that the restrictions set
forth in Sections 2.4, 4, 8, and 9 above are necessary to protect the Company's
confidential proprietary information and other legitimate business interests and
are reasonable in all respects, including duration, territory and scope of
activity restricted. Mr. Gast further acknowledges that the provisions of
Sections 2.4, 4, 8, and 9 hereof are essential to the Company, that the Company
would not enter into this Agreement if it did not include these provisions and
that damages sustained by the Company as a result of a breach of these
provisions cannot be adequately remedied by damages, and Mr. Gast agrees that
the Company, in addition to any other remedy it may have under this Agreement or
at law, shall be entitled to injunctive and other equitable relief to prevent or
curtail any breach of Sections 2.4, 4, 8, and 9 of this Agreement. Mr. Gast
agrees that the existence of any claim or cause of action by Mr. Gast against
the Company or its affiliates, whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by the Company of
any of the provisions of this Agreement. Mr. Gast shall have no right to enforce
any of his rights under this Agreement by seeking or obtaining injunctive or
other equitable relief and acknowledges that damages are an adequate remedy for
any breach by the Company of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first above written.
JATO COMMUNICATIONS CORP.
By: /s/ William D. Myers
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William D. Myers,
Senior Vice President, Finance and
Strategic Planning
By: /s/ Brian E. Gast
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BRIAN E. GAST
Founders Employment Transition and Separation Agreement - Jato Communications Corp. and Brian E. Gast
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