{"id":39980,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/founders-employment-transition-and-separation-agreement-jato.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"founders-employment-transition-and-separation-agreement-jato","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/founders-employment-transition-and-separation-agreement-jato.html","title":{"rendered":"Founders Employment Transition and Separation Agreement &#8211; Jato Communications Corp. and Brian E. Gast"},"content":{"rendered":"<pre>\n                            JATO COMMUNICATIONS CORP.\n\n             FOUNDERS EMPLOYMENT TRANSITION AND SEPARATION AGREEMENT\n\n                                       FOR\n\n                                  BRIAN E. GAST\n\n         THIS FOUNDERS EMPLOYMENT TRANSITION AND SEPARATION AGREEMENT\n(\"AGREEMENT\") is entered into as of the 10th day of February, 2000 (\"Execution\nDate\") by and between BRIAN E. GAST (\"Mr. Gast\") and JATO COMMUNICATIONS CORP.,\na Delaware corporation (the \"Company\").\n\n                                    RECITALS\n\n         WHEREAS, Mr. Gast has been employed by the Company as its President and\nChief Executive Officer; and\n\n         WHEREAS, the Company and Mr. Gast are parties to an employment\nagreement dated April 16, 1999; and\n\n         WHEREAS, the Company has materially reduced the job responsibilities of\nMr. Gast; and\n\n         WHEREAS, as a result of the material reduction of his job\nresponsibilities, Mr. Gast has tendered his resignation with the Company under\nthe terms and conditions hereinafter set forth; and\n\n         WHEREAS, the Company has accepted Mr. Gast's resignation as President\nand Chief Executive Officer; and\n\n         WHEREAS, the Company and Mr. Gast desire to replace the terms of the\nApril 16, 1999 Employment Agreement; and\n\n         WHEREAS, the Company wishes to employ Mr. Gast in the capacity and\nunder the terms and conditions hereinafter set forth, and Mr. Gast is willing to\nbe so employed by the Company.\n\n         NOW, THEREFORE, in consideration of the recitals set forth above that\nare incorporated by reference herein and the mutual promises and covenants\ncontained herein, it is hereby agreed by and between the parties hereto as\nfollows:\n\n                                    AGREEMENT\n\n1. RESIGNATION. Mr. Gast has tendered and the Company has accepted Mr. Gast's\nresignation as President and Chief Executive Officer and any and all other\npositions he may have held with the Company or any affiliates or subsidiaries of\nthe Company.\n\n\n\n\n2. CONTINUED EMPLOYMENT BY THE COMPANY. Mr. Gast will continue as an employee of\nthe Company until such time as his employment is terminated as set forth in\nparagraph 6 herein. From the Execution Date through the Separation Date, as\ndefined in paragraph 6 below, Mr. Gast shall be available to provide such\nservices as are requested by the Company's Board of Directors.\n\n         2.1 COMPENSATION. The Company agrees to continue to compensate Mr. Gast\nat the same rate of regular salary he received as of the Execution Date, less\nall applicable deductions and withholdings, payable on a semi-monthly basis or\nin accordance with the Company's customary practices (as they may be changed by\nthe Company from time to time in its sole discretion).\n\n         2.2 BENEFITS. The Company shall continue to make available to Mr. Gast\nall Company benefits available and received by Mr. Gast immediately before the\nExecution Date. Notwithstanding the prior sentence, Mr. Gast agrees and\nacknowledges that from the Execution Date through the Separation Date, Mr. Gast\nis not entitled to nor will he accrue any vacation time, holiday leave or sick\nleave.\n\n         2.3 RESTRICTED STOCK. As of the Execution Date, Mr. Gast owns or is\ndeemed to be the beneficial owner of 2,305,334 shares of Common Stock, of which\n641,600 were vested and 1,613,734 not yet vested. Unless Mr. Gast voluntarily\nresigns as an employee or is terminated for Cause (as defined below) prior to\nsuch date, the 1,613,734 unvested shares will vest the earlier of the Company's\ninitial public offering or in two equal installments of 806,867 shares on each\nof March 31, 2000 and June 30, 2000.\n\n         2.4 VOLUME LIMITATION. Should the Company launch a $130 million initial\npublic offering (IPO\"), $5 million will be allocated for the sale of a portion\nof the Founders' shares (for purposes herein the term \"Founders\" refers to Bruce\nE. Dines, Leonard Allsup and Brian E. Gast). The portion of the offering\nallocated for the sale of the Founders' shares can be utilized only after the\nCompany has raised $125 million in gross proceeds. If, due to strong market\nconditions, the size of the offering is increased above $130 million, 50% of\nsuch increase will be allocated for the sale of additional Founders' shares. .\nIf the Company raises at least $125 million in gross proceeds and if the\nunderwriter's over allotment option (the \"Greenshoe\") is exercised, 50% of the\nGreenshoe will also be allocated for the sale of the Founders' shares. Mr. Gast\nand the other Founders, in addition to being bound by the standard 180 day\nlockup agreement (the \"Standard Lockup\"), also agree that the number of shares\nthe Founders can sell during the 180 day period following the expiration of the\nStandard Lockup (\"the Additional Lockup\") will be limited (the \"Volume\nLimitation Period\"). The terms of the Volume Limitation Period are as follows:\n\n                  (a) The Founders will be limited to the sale of an aggregate\nof 750,000 shares every three months during the Volume Limitation Period. The\nFounders shall be solely responsible for allocating the number of shares each\nFounder will be permitted to sell per each three month period during the Volume\nLimitation Period. However, if the Founders are not permitted to sell at least\n$5 million of securities during the IPO, the three month period limitation will\nbe increased from 750,000 shares to 875,000 shares per each three month period.\nShares\n\n\n\n\nsold under this provision may be sold in only broadly distributed underwritten\npublic offerings or normal Rule 144 open market transactions.\n\n                  (b) As long as Mr. Gast maintains ownership in the Company Mr.\nGast shall also be bound by the following restrictions:\n\n                         (i) to not knowingly sell his shares of the Company\nstock to a person or group who, as a result of such sale, would own 5% or more\nof the Company's outstanding stock or to directly or indirectly solicit any\nperson or group to purchase from him or any other Founder shares in the Company\nif such person or group, as a result of such purchase, would own 5% or more of\nthe Company's outstanding stock; and\n\n                         (ii) to not knowingly sell his shares of the Company\nstock to a Company competitor (as defined in paragraph 8.1) or to directly or\nindirectly solicit any competitor (as defined in paragraph 8.1) to purchase from\nhim shares in the Company; and\n\n                         (iii) to not engage in, or support, a hostile proxy\nsolicitation.\n\n         2.5 FORGIVENESS OF NOTE. The Company loaned to Mr. Gast the amount of\n$100,000, pursuant to that certain promissory note (the \"Note\"). Unless Mr.\nGast's employment with the Company is terminated for Cause, as defined herein,\nor if Mr. Gast voluntarily terminates his employment, in each case prior to\nMarch 31, 2000, the Company agrees to forgive all outstanding amounts payable,\nincluding interest, on said Note and after said date, Mr. Gast's obligations of\nrepayment under the Note shall cease effective on March 31, 2000. Mr. Gast\nacknowledges that he is solely responsible for all tax consequences relating to\nthe forgiveness of the Note.\n\n         2.6 VACATION PAY-OUT. The parties agree that on the Separation Date the\naccrued but unused vacation shall be 20 days.\n\n         2.7 SEPARATION AND RELEASE AGREEMENT. As part of this Agreement, Mr.\nGast agrees to enter into the Separation and Release Agreement attached hereto\nas Exhibit B, within the time set forth in said Separation and Release\nAgreement.\n\n3. POLICIES AND PROCEDURES. Mr. Gast agrees that he is subject to and will\ncomply with the policies and procedures of the Company, as such policies and\nprocedures may be modified, added to or eliminated from time to time at the sole\ndiscretion of the Company Board of Directors, except to the extent any such\npolicy or procedure specifically conflicts with the express terms of this\nAgreement. Mr. Gast further agrees and acknowledges that any written or oral\npolicies and procedures of the Company do not constitute contracts between the\nCompany and Mr. Gast.\n\n4.       PROPRIETARY INFORMATION OBLIGATIONS.\n\n         4.1 AGREEMENT. Except as set forth herein, Mr. Gast agrees to continue\nto abide by Mr. Gast's previously executed Non-Competition, Proprietary\nInformation and Inventions Agreement attached hereto as EXHIBIT A.\n\n\n\n         4.2 REMEDIES. Mr. Gast's duties under the Non-Competition, Proprietary\nInformation and Inventions Agreement shall survive termination of his employment\nwith the Company. Mr. Gast acknowledges that a remedy at law for any breach or\nthreatened breach by him of the provisions of the Non-competition, Proprietary\nInformation and Inventions Agreement would be inadequate, and he therefore\nagrees that the Company shall be entitled to injunctive relief in case of any\nsuch breach or threatened breach. By seeking injunctive relief the Company does\nnot waive any other rights or remedies it may have.\n\n5. OUTSIDE ACTIVITIES. Except with the prior written consent of the Company's\nBoard of Directors, Mr. Gast will not, from the Execution Date through the\nSeparation Date, undertake or engage in any other employment, occupation or\nbusiness enterprise, other than those in which Mr. Gast is a passive investor,\nnon-executive board member or which takes less than 10% of Mr. Gast's business\ntime. Mr. Gast may engage in civic and not-for-profit activities so long as such\nactivities do not materially interfere with the performance of his duties\nhereunder.\n\n6. TERMINATION OF EMPLOYMENT. Either Mr. Gast or the Company may terminate the\nemployment relationship at any time for any reason whatsoever, with thirty (30)\ndays prior written notice by the Company and with thirty (30) days' prior\nwritten notice by Mr. Gast with or without Cause or advance notice. This at-will\nemployment relationship cannot be changed except in a writing approved by the\nBoard. Notwithstanding this at-will employment relationship, Mr. Gast's\nemployment with the Company shall automatically terminate upon the earlier of\nthe closing of the Company's initial public offering or on June 30, 2000.\nWhether terminated for cause, without cause, automatically as provided in the\nprevious sentence or voluntarily terminated by Mr. Gast, such termination is\ndefined herein as the \"Separation Date.\" Mr. Gast shall remain as a member of\nthe Board of Directors of the Company and the member of the Board of Directors\nof any affiliates or subsidiaries of the Company until June 30, 2000. On June\n30, 2000, Mr. Gast agrees to tender his resignation from the Board of Directors\nof the Company and from the Board of Directors of any affiliates or subsidiaries\nof the Company.\n\n         6.1 SEVERANCE PAYMENT. If the Company terminates Mr. Gast's employment\nwithout Cause at any time or if Mr. Gast employment terminates automatically as\nset forth in paragraph 6 herein, Mr. Gast will receive as severance: (i) a lump\nsum payment equal to one (1) year of base salary, less payroll deductions and\nrequired withholdings pursuant to the Separation Agreement attached as Exhibit\nB, (ii) a lump sum payment of that portion of the bonus Mr. Gast is entitled to\nfor the calendar year pro-rated based upon the number of full months Mr. Gast\nwas employed in such year pursuant to the Separation Agreement attached as\nExhibit B, (iii) continuation of all company benefits for a period of one (1)\nyear pursuant to the Separation Agreement attached as Exhibit B, and (iv)\ntermination of all repurchase rights on Mr. Gast's stock, in exchange for the\nexecution of a release of all claims against the Company in the form attached as\nExhibit B; PROVIDED, THAT, in the event of termination due to Disability, this\nsubsection (iv) shall apply only with respect to 50% of any unvested stock held\nby Mr. Gast on the date of termination and with respect to the waiver of\nrepurchase rights of 50% of any unvested shares held by Mr. Gast on the date of\ntermination; PROVIDED, FURTHER, that Mr. Gast shall remain a party to, and\nsubject to the provisions of, the Investors' Rights Agreement. If Mr. Gast\nvoluntarily resigns or if Mr. Gast's employment is terminated for Cause, all\ncompensation and benefits will cease immediately and Mr. Gast will receive no\nseverance benefits.\n\n\n\n         6.2 CAUSE. For purposes of this Agreement, \"CAUSE\" shall mean\nmisconduct, including: (i) conviction of any felony or any crime involving moral\nturpitude or dishonesty; (ii) participation in a fraud or act of dishonesty\nagainst the Company; (iii) willful breach of the Company's policies; (iv)\nintentional damage to the Company's property; (v) material breach of this\nAgreement or Mr. Gast's Proprietary Information and Inventions Agreement; (vi) a\nfailure or refusal in a material respect of Mr. Gast to follow the reasonable\npolicies or directions of the Company as specified by the Board of Directors\nafter being provided with notice of such failure and an opportunity to cure\nwithin seven (7) days of receipt of such notice; or (vii) failure to carry out\nthe duties of the Mr. Gast's position after being provided with notice of such\nfailure and an opportunity to cure. Disability shall not constitute \"Cause.\"\n\n         6.3 DISABILITY. For purposes of this Agreement, \"DISABILITY\" shall mean\na disability that prevents Mr. Gast from substantially performing his duties\nunder this Agreement for a period of at least 90 consecutive days or 180\nnon-consecutive days within any 365-day period.\n\n         6.4 DEATH. In the event of death, the Company shall pay to Mr. Gast's\nestate any earned but unpaid salary at the time of death and, at the time such\namount would otherwise have been due, a pro rata portion of a discretionary\nbonus, if any, which may otherwise have been paid to Mr. Gast with respect to\nthe annual period in which the death occurs. Furthermore, the Company shall\nwaive its repurchase rights with respect to 50% of any unvested shares as of the\ndate of death; PROVIDED, HOWEVER, that Mr. Gast's estate, administrator or\ndistributor shall become a party to, and be subject to the provisions of, the\nInvestors' Rights Agreement. In addition, the acceleration provisions set forth\nin paragraph 2.3 herein shall remain in effect, PROVIDED, HOWEVER, that Mr.\nGast's estate, administrator or distributor shall become a party to, and be\nsubject to the provisions of, this Agreement.\n\n7. BUSINESS EXPENSE REIMBURSEMENT. The Company agrees to reimburse Mr. Gast for\nthose reasonable business expenses he necessarily incurs in his capacity as a\nCompany employee and member of the Board of Directors consistent with the\nCompany's policies in this regard. Mr. Gast must submit the necessary\ndocumentation establishing the amount, date and reason for expenses he incurred\nand for which he seeks reimbursement.\n\n8. NON-COMPETITION AND NON-SOLICITATION. Mr. Gast acknowledges that prior to the\nSeparation Date, the Company employed him, among other things, as a member of\nexecutive and management personnel. Mr. Gast further acknowledges that during\nhis employment at the Company, he was and will be privy to extremely sensitive,\nconfidential and valuable commercial information, which constitutes trade\nsecrets belonging to the Company, the disclosure of which information and\nsecrets would greatly harm the Company.\n\n         8.1 NON-COMPETITION COVENANT. As a reasonable measure to protect the\nCompany from the harm of such disclosure and use of its information and trade\nsecrets against it, Mr. Gast agrees to the following as part of this Agreement:\nMr. Gast agrees that he shall not, individually or together with others,\ndirectly or indirectly, during his employment with the Company and for a period\nof twelve (12) months from the Separation Date, for any reason, whether as an\nowner, consultant, partner, joint venturer, stockholder, broker, agent,\nfinancial agent, principal, trustee, licensor or in any other capacity\nwhatsoever, own, manage, operate, join, control, finance or participate in the\nownership, management, operation, control or financing of, or be connected as \n\n\n\n\nan officer, director, employee, partner, principal, agent, representative,\nconsultant, licensor, licensee or otherwise with, any business or enterprise in\nany city, county, or state of the United States, or any other locality, region,\nterritory, country, or jurisdiction, which provides high speed data transmission\nservices in a market in which the Company has at least one (1) operational DSLAM\nor at least one (1) central office location under construction as of the\nSeparation Date. An acquisition or ownership of less than 5% of the outstanding\nshares of any publicly traded company will not constitute a violation of this\nAgreement.\n\n         8.2 NON-SOLICITATION COVENANT. As a reasonable measure to protect the\nCompany from the harm of such disclosure and use of its information and trade\nsecrets against it, the parties agree to the following as part of this\nAgreement: Mr. Gast acknowledges and agrees that information regarding employees\nof the Company is Confidential Information, including without limitation, the\nnames of the Company employees; information regarding the skills and knowledge\nof employees of the Company; information regarding any past, present, or\nintended compensation, benefits, policies and incentives for employees of the\nCompany; and information regarding the management and reporting structure of the\nCompany. Mr. Gast agrees that he will not, individually or with others, directly\nor indirectly (including without limitation, individually or through any\nbusiness, venture, proprietorship, partnership, or corporation in which they\ncontrol or own more than a five (5) percent interest, through any agents,\nthrough any contractors, through recruiters, by their successors, by their\nemployees, or by their assigns) hire, solicit, or induce any employee of the\nCompany to leave the Company during the period Mr. Gast is employed by the\nCompany and for a period of twelve (12) months from the Separation Date. Mr.\nGast further agrees that during the period he is employed by the Company and for\na period of twelve (12) months from the Separation Date, he will not, either\ndirectly or indirectly, solicit or attempt to solicit any customer, client,\nsupplier, investor, vendor, consultant or independent contractor of the Company\nto terminate, reduce or negatively alter his, her or its relationship with the\nCompany. The geographic scope of the covenants in this paragraph shall include\nany city, county, or state of the United States and any such other city,\nterritory, country, or jurisdiction in which the Company does business. Nothing\nin this paragraph should be construed to narrow the obligations of Mr. Gast\nimposed by any other provision herein, any other agreement, law or other source.\n\n         8.3 REASONABLE. Mr. Gast agrees and acknowledges that the time\nlimitation and the geographic scope on the restrictions in this paragraph 8 and\nits subparts are reasonable. Mr. Gast also acknowledges and agrees that the\nlimitation in this paragraph 8 and its subparts is reasonably necessary for the\nprotection of the Company, that through this Agreement he shall receive adequate\nconsideration for any loss of opportunity associated with the provisions herein,\nand that these provisions provide a reasonable way of protecting the Company's\nbusiness value which was imparted to him. In the event that any term, word,\nclause, phrase, provision, restriction, or section of this paragraph 8 of this\nAgreement is more restrictive than permitted by the law of the jurisdiction in\nwhich the Company seeks enforcement thereof, the provisions of this Agreement\nshall be limited only to that extent that a judicial determination finds the\nsame to be unreasonable or otherwise unenforceable. Moreover, notwithstanding\nany judicial determination that any term, word, clause, phrase, provision,\nrestriction, or section of this Agreement is not specifically enforceable, the\nparties intend that the Company shall nonetheless be entitled to recover\nmonetary damages as a result of any breach hereof.\n\n\n\n         8.4 LEGAL AND EQUITABLE REMEDIES. In view of the nature of the rights\nin goodwill, employee relations, trade secrets, and business reputation and\nprospects of the Company to be protected under this paragraph 8 of this\nAgreement, Mr. Gast understands and agrees that the Company could not be\nreasonably or adequately compensated in damages in an action at law for Mr.\nGast's breach of his obligations hereunder. Accordingly, Mr. Gast specifically\nagrees that the Company shall be entitled to temporary and permanent injunctive\nrelief, specific performance, and other equitable relief to enforce the\nprovisions of this paragraph 8 of this Agreement and that such relief may be\ngranted without the necessity of proving actual damages, and without bond. MR.\nGAST ACKNOWLEDGES AND AGREES THAT THE PROVISIONS IN THIS PARAGRAPH 8 AND ITS\nSUBPARTS ARE ESSENTIAL AND MATERIAL TO THIS AGREEMENT, AND THAT UPON BREACH OF\nTHIS PARAGRAPH 8 BY HIM, THE COMPANY IS ENTITLED TO WITHHOLD PROVIDING PAYMENTS\nOR CONSIDERATION, TO EQUITABLE RELIEF TO PREVENT CONTINUED BREACH, TO RECOVER\nDAMAGES AND TO SEEK ANY OTHER REMEDIES AVAILABLE TO THE COMPANY. This provision\nwith respect to injunctive relief shall not, however, diminish the right of the\nCompany to claim and recover damages or other remedies in addition to equitable\nrelief.\n\n         8.5 EXTENSION OF TIME. In the event that Mr. Gast breaches any\ncovenant, obligation or duty in this paragraph 8 or its subparts, any such duty,\nobligation, or covenants to which the parties agreed by this paragraph 8 and its\nsubparts shall automatically toll from the date of the first breach, and all\nsubsequent breaches, until the resolution of the breach through private\nsettlement, judicial or other action, including all appeals. The duration and\nlength of Mr. Gast's duties and obligations as agreed by this paragraph 8 and\nits subparts shall continue upon the effective date of any such settlement, or\njudicial or other resolution.\n\n9.       GENERAL PROVISIONS.\n\n         9.1 NOTICES. Any notices provided hereunder must be in writing and\nshall be deemed effective upon the earlier of personal delivery (including\npersonal delivery by telex) or the third day after mailing by first class mail,\nto the Company at its primary office location and to Mr. Gast at his address as\nlisted on the Company's then current payroll records.\n\n         9.2 TAX CONSEQUENCES. Mr. Gast agrees to indemnify the Company and hold\nthe Company harmless from any and all claims or penalties asserted against the\nCompany for any failure to pay taxes due on any consideration provided by the\nCompany pursuant to this Agreement. Mr. Gast expressly acknowledges that the\nCompany has not made, nor herein makes, any representation about the tax\nconsequences of any consideration provided by the Company to Mr. Gast pursuant\nto this Agreement.\n\n         9.3 COOPERATION. Mr. Gast agrees to fully cooperate with the Company\nwith respect to its corporate relationships. Mr. Gast further agrees to\ncooperate with the Company in connection with any defense of or prosecution by\nthe Company regarding any litigation in which the Company may be involved as a\nparty or non-party in from time to time.\n\n         9.4 NON-DISPARAGEMENT. Mr. Gast and the Company agree that neither\nparty will at any time disparage the other to third parties in any manner likely\nto be harmful to the other party, their business reputation, or the personal or\nbusiness reputation of its directors, shareholders and\/or employees.\nNotwithstanding the prohibition in the preceding sentence, each party shall\n\n\n\n\nrespond accurately and fully to any question, inquiry, or request for\ninformation when required by legal process, or when posed by a governmental\nentity\n\n         9.5 THE COMPANY PROPERTY. Unless authorized by the Company, on the\nSeparation Date, Mr. Gast agrees to return to the Company all Company documents\n(and all copies thereof) and any and all other Company property in Mr. Gast's\npossession, custody or control, including, but not limited to, financial\ninformation, customer information, customer lists, employee lists, Company\nfiles, notes, cellular telephones, personal computers, personal computers,\ncontracts, drawings, records, business plans and forecasts, financial\ninformation, specifications, computer-recorded information, software, tangible\nproperty, credit cards, entry cards, identification badges and keys, and any\nmaterials of any kind which contain or embody any proprietary or confidential\nmaterial of the Company (and all reproductions thereof).\n\n         9.6 SEVERABILITY. Whenever possible, each provision of this Agreement\nwill be interpreted in such manner as to be effective and valid under applicable\nlaw, but if any provision of this Agreement is held to be invalid, illegal or\nunenforceable in any respect under any applicable law or rule in any\njurisdiction, such invalidity, illegality or unenforceability will not affect\nany other provision or any other jurisdiction, but this Agreement will be\nreformed, construed and enforced in such jurisdiction as if such invalid,\nillegal or unenforceable provisions had never been contained herein.\n\n         9.7 WAIVER. If either party should waive any breach of any provisions\nof this Agreement, he or it shall not thereby be deemed to have waived any\npreceding or succeeding breach of the same or any other provision of this\nAgreement.\n\n         9.8 COMPLETE AGREEMENT. This Agreement and EXHIBITS A AND B hereto,\nconstitute the entire agreement between Mr. Gast and the Company and it is the\ncomplete, final, and exclusive embodiment of their agreement with regard to this\nsubject matter. This Agreement supersedes and replaces the Employment Agreement\ndated April 16, 1999. It is entered into without reliance on any promise or\nrepresentation other than those expressly contained herein, and it cannot be\nmodified or amended except in a writing signed by an officer of the Company.\n\n         9.9 COUNTERPARTS. This Agreement may be executed in separate\ncounterparts, any one of which need not contain signatures of more than one\nparty, but all of which taken together will constitute one and the same\nAgreement.\n\n         9.10 HEADINGS. The headings of the sections hereof are inserted for\nconvenience only and shall not be deemed to constitute a part hereof nor to\naffect the meaning thereof.\n\n         9.11 SUCCESSORS AND ASSIGNS. This Agreement is intended to bind and\ninure to the benefit of and be enforceable by Mr. Gast and the Company, and\ntheir respective successors, assigns, heirs, executors and administrators,\nexcept that Mr. Gast may not assign any of his duties hereunder and he may not\nassign any of his rights hereunder without the written consent of the Company,\nwhich shall not be withheld unreasonably.\n\n         9.12 ATTORNEY FEES. If either party hereto brings any action to enforce\nhis or its rights hereunder, the prevailing party in any such action shall be\nentitled to recover his or its reasonable attorneys' fees and costs incurred in\nconnection with such action.\n\n\n\n\n         9.13 CHOICE OF LAW. All questions concerning the construction, validity\nand interpretation of this Agreement will be governed by the law of the State of\nColorado.\n\n         9.14 SURVIVAL. The following provisions of this Agreement shall survive\nthe termination of Mr. Gast's employment as an employee or independent\ncontractor and the assignment of this Agreement by the Company to any successor\nin interest or other assignee: Sections 2.4, 4, 8, and 9.\n\n         9.15 INJUNCTIVE RELIEF. Mr. Gast acknowledges that the restrictions set\nforth in Sections 2.4, 4, 8, and 9 above are necessary to protect the Company's\nconfidential proprietary information and other legitimate business interests and\nare reasonable in all respects, including duration, territory and scope of\nactivity restricted. Mr. Gast further acknowledges that the provisions of\nSections 2.4, 4, 8, and 9 hereof are essential to the Company, that the Company\nwould not enter into this Agreement if it did not include these provisions and\nthat damages sustained by the Company as a result of a breach of these\nprovisions cannot be adequately remedied by damages, and Mr. Gast agrees that\nthe Company, in addition to any other remedy it may have under this Agreement or\nat law, shall be entitled to injunctive and other equitable relief to prevent or\ncurtail any breach of Sections 2.4, 4, 8, and 9 of this Agreement. Mr. Gast\nagrees that the existence of any claim or cause of action by Mr. Gast against\nthe Company or its affiliates, whether predicated on this Agreement or\notherwise, shall not constitute a defense to the enforcement by the Company of\nany of the provisions of this Agreement. Mr. Gast shall have no right to enforce\nany of his rights under this Agreement by seeking or obtaining injunctive or\nother equitable relief and acknowledges that damages are an adequate remedy for\nany breach by the Company of this Agreement.\n\n\n\n\n\n\n         IN WITNESS WHEREOF, the parties have executed this Agreement on the day\nand year first above written.\n\n                                      JATO COMMUNICATIONS CORP.\n\n                                      By: \/s\/ William D. Myers\n                                          ----------------------------------\n                                          William D. Myers,\n                                          Senior Vice President, Finance and \n                                          Strategic Planning                 \n                                          \n\n\n\n                                      By: \/s\/ Brian E. Gast\n                                          ----------------------------------\n                                          BRIAN E. 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