EX-10.9 M. SCOTT DIAMOND EMPLOYMENT AGREEMENT



 




EXHIBIT
10.9




US Voice and Data, LLC

11500 Blankenbaker Access Dr.

Suite 103

Louisville, KY 40299




September 14, 2007




M. Scott Diamond

11500 Blankenbaker Access Dr.

Suite 103

Louisville, KY 40299




     Re: Employment Agreement 



Dear Mr. Diamond:




     This letter agreement (this “Agreement”) sets forth the terms and conditions of your
employment with US Voice and Data, LLC (the “Company”), effective as of the date first above
written (the “Effective Date”).



     WHEREAS, you, together with Michael P. Fischer and the members of the Company (the “Members”),
entered into a Membership Interest Purchase Agreement with Brookside Technology Holdings Corp. (the
“Purchaser”) as of the 14th day of September 2007, pursuant to which the Members agreed
to sell all of the membership interests of the Company to Brookside Technology Holdings Corp. (the
“Purchase Agreement”); and



     WHEREAS, because of your experience in the business of the Company and your many contacts with
the clients of the Company, it is important to the Purchaser that you are employed by Company
pursuant to the terms of this Agreement in order to give the Purchaser the opportunity to obtain
maximum value from the membership interests of the Company purchased from the Members.



     NOW THEREFORE, in consideration of the mutual covenants and conditions herein contained, and
for other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:



     1. Employment and Services. The Company shall employ you as Chief
Operating Officer (“COO”) of the Company, for the period beginning on the Effective
Date and ending upon termination pursuant to paragraph 4 (the “Employment Period”).
Your responsibilities include those set forth on Schedule 1 hereto and other special
projects and assignments as designated by the Company’s Board of Directors. You will
report directly to the Board of Directors and shall render such
services to the Company and its affiliates and subsidiaries as the Board of
Directors shall reasonably designate from time to time. You shall devote your best
efforts and all of your time and attention to the business of the Company;
provided, however, that nothing herein contained shall prohibit or restrict you
from devoting reasonable time to personal business matters, to sit on any
for-profit Boards (or comparable bodies) and/or charitable activities to the
extent that these activities do not relate to any Entity or Competitive Business
(as defined in



 









 




paragraph 9 below). In addition to the limitations set forth in paragraph 9 below, during
the Employment Period, you agree not to be employed by, consult with or advise any
Entity (as defined in paragraph 9 below), without the consent of the Board.




     2. Compensation.



          a. Annual Base Salary. The Company shall pay you an annual base salary (“Annual Base
Salary”) of One Hundred Forty Five Thousand Dollars ($145,000.00) during the Employment Period,
subject to annual review in each year of the Employment Period thereafter (for any partial year
during the Employment Period, the Annual Base Salary shall be prorated based on the number of days
during such year on which you are employed by the Company). The first such annual review will occur
on the first anniversary of this Agreement. As used herein, the term “Annual Base Salary” refers to
the Annual Base Salary as so increased. Such Annual Base Salary shall be payable in installments in
accordance with the Company’s regular payroll practices, but no less frequently than monthly.




          b. Withholding.
Notwithstanding anything herein to the contrary, there shall be
deducted or withheld from all amounts payable to you amounts for all federal, state, city or other
taxes required by applicable law to be so withheld or deducted and any other amounts authorized for
deduction by or required by law.




     3. Benefits. During the Employment Period, you shall be entitled to participate in the
Company’s fringe benefit plans, subject to and in accordance with applicable eligibility
requirements, such as medical, dental, 401(k), life and disability insurance plans and all other
benefit plans generally available to the Company’s employees, in each case, on terms and at a cost
to you, no less favorable than other employees of the Company. In addition, the Company will
reimburse you from time to time for your reasonable out-of-pocket expenses incurred in connection
with the performance of your duties hereunder, consistent with Company policy. You shall be
entitled to take four (4) weeks paid time off in accordance with the Company’s vacation, holiday
and illness policy, provided that vacation time is scheduled in advance with and approved by the
Board of Directors.



     4. Termination. The Employment Period shall terminate on the first to occur of (i)
your death or Disability, (ii) immediately upon notice by the Board of Directors of the termination
of your employment with Cause (as defined below), or (iii) three years after the Effective Date
(the “Scheduled Expiration Date”).



          (a) Definitions,




               (i) For purposes of this Agreement, “Disability” shall mean that for a period of three (3)
consecutive months or an aggregate of six (6) months in any twelve (12) month period you are
incapable of substantially fulfilling the duties of your positions as set forth in paragraph 1
because of physical, mental or
emotional incapacity, injury, sickness or disease. Any question as to the existence or extent
of the Disability upon which you and the Company cannot agree shall be determined by a qualified,
independent physician selected by the Company. The determination of any such physician shall be
final and conclusive for all purposes; provided, however, that you or your legal representatives
shall have the right to present to such physician



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such information as to such Disability as you or they may deem appropriate, including the
opinion of your personal physician.




               (ii) For purposes of this Agreement, “Cause” shall mean (i) a breach by you of your
obligations under paragraph 1 (other than as a result of physical or mental incapacity) which
constitutes a material nonperformance by you of your obligations and duties thereunder (including
the failure of you to carry out or comply with in any material respect any directive of the Board
or such executive officer(s) of the Company as provided in paragraph 1 , which is consistent with
your obligations as provided in paragraph 1), and your failure to timely cure such breach within
forty-eight (48) hours after detailed written notice thereof, or to initiate the requisite remedial
action within such time period if the remedial action necessary to accomplish such cure is
reasonably expected to take longer; (ii) commission by you of an act of fraud upon, or willful
misconduct toward the Company; (iii) a breach by you of any of paragraphs 5 through 9 hereof and
your failure to timely cure such breach within forty-eight (48) hours after detailed written notice
thereof, or to initiate the requisite remedial action within such time period if the remedial
action necessary to accomplish such cure is reasonably expected to take longer; (iv) your
conviction of or no contest plea to a felony or crime involving moral turpitude, or your guilty
plea to a lesser included offense or crime in exchange for withdrawal of a felony indictment,
felony charge by information or a charged crime involving moral turpitude, whether the charge
arises under the laws of the United States or any other state within the United States; (v) any
judicial or arbitrators’ determination that you acted as a Company employee in an intentionally
wrongful or tortious manner toward another employee, customer, supplier or prospective customer or
supplier; or (vi) illegal drug or substance abuse or illegal drug or substance addiction by you.



               (iii) For purposes of this Agreement, “without Cause” shall mean a termination by the Company
of your employment during the Employment Period for any reason other than a termination based upon
Cause, death or Disability.



               (iv) For purposes of this Agreement, “Constructive Termination” shall mean a termination by
you of your employment during the Employment Period (i) because of an adverse change in your
compensation; (ii) because of a significant change in your responsibilities; (iii) because the
Company requires you to relocate your residence from the Louisville, Kentucky area and you refuse
to do so; and/or (iv) the Company and/or the Purchaser breaches any of its payment obligations
under this Agreement or under the Purchase Agreement and fails to cure such breach within five (5)
business days after written notice from you of such breach.



          (b) Obligations of the Company upon Termination.




               (i) Termination Without Cause or Constructive Termination. For and in consideration
of your covenants set forth in paragraphs 5 through 9 of this Agreement, the Company agrees that
if, during the Employment Period, the Company shall terminate your employment without Cause, or
should you terminate your employment because of Constructive Termination, then in either of such
events, the Company shall pay you as follows: (A) all of the unpaid “Post-Closing Payments”
referred to in Section 2.2 (b) of the Purchase Agreement, which shall be deemed to be immediately
due and payable in full (to Your Trust); and (B) a series of



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monthly payments for the months remaining in the Employment Period following such termination
until the Scheduled Expiration Date, each such monthly payment to be paid periodically in
accordance with the Company’s regular payroll practices (but no less frequently than monthly) and
to be equal to one-twelfth (1/12th) of your Annual Base Salary as in effect immediately prior to
the termination of the Employment Period; and (C) (1) if such termination occurs prior to December
31, 2007, the greater of (I) the Earnout Payment for the First Calculation Period, the Second
Calculation Period, the Third Calculation Period and the Fourth Calculation Period (together,
hereinafter referred to as the “Calculation Periods”), or (II) a “Minimum Cash Payment of Seven
Hundred Fifty Thousand Dollars ($750,000); (2) if such termination occurs prior to December 31,
2008, but after December 31, 2007, the greater of (I) the Earnout Payment for the Second
Calculation Period, the Third Calculation Period and the Fouth Calculation Period, or (II) a
“Minimum Cash Payment” of Six Hundred Thousand Dollars ($600,000); (3) if such termination occurs
prior to December 31, 2009, but after December 31, 2008, the greater of (I) the Earnout Payment
for the Third Calculation Period and the Fourth Calculation Period, or (II) a “Minimum Cash
Payment” of Four Hundred Fifty Thousand Dollars ($450,000); and (4) if such termination occurs
prior to June 30, 2010, but after December 31, 2009, the greater of (I) the Earnout Payment for
the Fourth Calculation Period, or (II) a “Minimum Cash Payment” of One Hundred Fifty Thousand
Dollars ($150,000). All of the unpaid “Post-Closing Payments” referred to in Section 2.2 (b) of
the Purchase Agreement, and the applicable “Minimum Cash Payment” referred to above, shall be due
and payable by the Company to you within thirty (30) days from and after the date of the
termination without Cause or Constructive Terination; however, once the Earnout Payment, if any,
has been finally determined in accordance with Section 2.5 of the Purchase Agreement, if
the Earnout Payment would have been greater than the applicable Minimum Cash Payment that was
made, then the Company shall pay the difference to you once the Earnout Payment for the
Calculation Periods concluding after your termination of employment under this paragraph have been
finally determined in accordance with Section 2.5 of the Purchase Agreement. You hereby
agree that if the applicable Minimum Cash Payment paid to you is in excess of the Earnout Payment,
that such Minimum Cash Payment is in lieu of any Earnout Payment that would have been due to The
M. Scott Diamond Irrevocable Delaware Trust under Agreement dated April 23, 2007 (the “Trust”), if
earned, for such periods and the Trust hereby waives its rights under the Purchase Agreement to
any such Earnout Payment in such event.



Notwithstanding the foregoing, the Company shall not be required to make the payment set forth in
the foregoing paragraph if you have been adjudicated as being in breach of paragraph 9 herein,
provided, further, that since adjudication through litigation takes a substantial amount of time,
if the Company makes a claim or claims against you for breach of paragraph 9 of this Agreement, the
Company may pay the payment set forth above into escrow pending the adjudication of the claim or
claims.



The Company shall have no further payment obligations to you under this Agreement, other than
for amounts arising from your participation in, or benefits under, any plans or programs in which
you participated pursuant to paragraph 3, which amounts shall be payable in accordance with the
terms and conditions of such plans and programs.




               (ii) Cause, Death, Disability or Resignation. If your employment shall be terminated
by the Company for Cause, death or Disability or you terminate your



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employment by resignation during the Employment Period, the Company shall have no further
payment obligations to you other than for salary accrued through the date of termination and for
amounts arising from your participation in, or benefits under, any plans or programs in which you
participated pursuant to paragraph 3, which amounts shall be payable in accordance with the terms
and conditions of such plans and programs. If you terminate your employment by resignation during
the Employment Period you shall forfeit the Earnout Payment for the Calculation Period in which
the resignation occurred and you shall also forfeit the Earnout Payments for any and all
Calculation Periods thereafter.




          (c) Full Settlement. The Company shall not be liable to you for any damages in
addition to the amounts payable under this paragraph 4 arising out of the termination of your
employment prior to the end of the Employment Period.




     5. Maintaining Confidential Information.



          a. Company Information. You agree at all times during the term of your employment and
thereafter to hold in confidence, and not to use, except for the benefit of the Company, or to
disclose to any person, firm or corporation without written authorization of the Board of Directors
of the Company, any trade secrets, confidential knowledge, data or other proprietary information
relating to products, processes, know-how, designs, formulas, developmental or experimental work,
computer programs, data bases, other original works of authorship, customer lists, business plans,
financial information or other subject matter pertaining to any business of the Company or any of
its customers, consultants, or licensees.




          b. Third Party Information. You recognize that the Company has received and in the
future will receive from third parties their confidential or proprietary information subject to a
duty on the Company’s part to maintain the confidentiality of such information and to use it only
for certain limited purposes. You agree that you owe the Company and such third parties, during the
term established by such third parties, a duty to hold all such confidential or proprietary
information conveyed to you and which has been expressly described as being confidential pursuant
to contract, in confidence and not to disclose it to any person, firm or corporation (except as
necessary in carrying out your work for the Company consistent with the Company’s agreement with
such third party) or to use it for the benefit of anyone other than for the Company or such third
party (consistent with the Company’s agreement with such third party) without the express written
authorization of the Board of Directors of the Company. The Company agrees to provide you with a
copy of any agreement with a third party, or any redacted portion of such agreement relating to
confidentiality, that does, or could reasonably be deemed to, restrict your disclosures and
activities hereunder.




          c. Remedies. If legal proceedings should have to be brought by the Company against
you to enforce the confidentiality provisions of this paragraph 5 the Company shall be entitled to
seek all of the civil remedies provided by state law, including without limitation:





	 	i.	 	Preliminary and permanent injunctive relief restraining you from any
unauthorized disclosure or use of any trade secrets or confidential
business or technical information, in whole or in part,





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	 	 	 	and from rendering any service to any person, corporation, partnership,
limited liability company, joint venture, association, or other business
organization to whom or to which such secrets or confidential
information, in whole or in part, have been disclosed or are threatened
to be disclosed;
	 
	 	ii.	 	Compensatory damages;
	 
	 	iii.	 	Attorneys’ fees in the trial and appellate courts; and
	 
	 	iv.	 	Costs and expenses of investigation and litigation, including expert
witness fees, deposition costs (appearance fees and transcript charges),
injunction bond premiums, travel and lodging expenses, and charges, and
all other reasonable costs and expenses.





     Nothing in this Agreement shall be construed as prohibiting the Company from pursuing any
other legal or equitable remedies available to it for breach or threatened breach of the provisions
of this paragraph 5, and the existence of any claim or cause of action of you against the Company,
whether predicated on this Agreement or otherwise, shall not constitute a defense to the
enforcement by Company of the provisions of this paragraph 5. The Company has fully performed all
obligations entitling it to the restrictions of this paragraph 5, and those restrictions therefore
are not executory or otherwise subject to rejection under the Bankruptcy Code.



     6. Retaining and Assigning Inventions and Original Works.



          a. Inventions and Original Works Retained by You. You have attached hereto, as Exhibit
A, a list describing all inventions, original works of authorship, developments, improvements, and
trade secrets which were made by you prior to your employment with the Company, which belong to
you, which reasonably relate to the Company’s business and products, and which are not assigned to
the Company. If you have no such inventions or original works, you will so indicate on the attached
list.




          b. Inventions and Original Works Assigned to the Company. You agree that you will
promptly make full written disclosure to the Company, will hold in trust for the sole right and
benefit of the Company, and will assign to the Company all your right, title, and interest in and
to any and all inventions, original works of authorship, developments, improvements or trade
secrets which you have solely or jointly conceived or developed or reduced to practice, or caused
to be conceived or developed or reduced to practice, during the period of time you have been in the
employ of the Company or which you may solely or jointly conceive or develop or reduce to practice,
during the period of time you shall be in the employ of the Company. You and the Company recognize,
however, this provision does not apply to any invention as to which you can prove the following (an “Excluded Invention”):





	 	i.	 	It was developed entirely on your own time; and
	 
	 	ii.	 	No equipment, supplies, facility or trade secret of the Company was used in its development; and




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	 	iii.	 	It neither






                    (1) relates at the time of its conception or reduction to practice to the business of the
Company or to the Company’s actual or demonstrably anticipated research and development; nor




                    (2) results from any work performed by you for the Company.



     You acknowledge that all original works of authorship which have been and will be made by you
(solely or jointly with others) within the scope of your employment and which are protectable by
copyright are “works made for hire,” as that term is defined in the United States Copyright Act (17
USCA Section 101).



          c. Maintenance of Records. You agree to keep and maintain adequate and current written
records of all inventions and original works of authorship made by you (solely or jointly with
others) during the term of your employment with the Company. The records will be in the form of
notes, sketches, drawings, and any other format that may be specified by the Company in writing.
The records will be available to and remain the sole property of the Company at all times.




          d. Inventions Assigned to the United States. You agree to assign to the United States
government all your right, title, and interest in and to any and all inventions, original works of
authorship, developments, improvements or trade secrets, other than with respect to Excluded
Inventions, whenever such full title is required to be in the United States by a contract between
the Company and the United States or any of its agencies.




          e. Obtaining Letters Patent and Copyright Registrations. You agree that your
obligation to assist the Company to obtain United States or foreign letters patent and copyright
registrations covering inventions and original works of authorship assigned hereunder to the
Company shall continue beyond the termination of your employment, but the Company shall compensate
you at a reasonable rate for time actually spent by you at the Company’s request on such
assistance. If the Company is unable because of your mental or physical incapacity or for any other
reason to secure your signature (after making a good faith and reasonable attempt to do so) to
apply for or to pursue any application for any United States or foreign letters patent or copyright
registrations covering inventions or original works of authorship assigned to the Company as above,
then you hereby irrevocably designate and appoint the Company and its duly authorized officers and
agents as your agent and attorney in fact, to act for and in your behalf and stead, to execute and
further the prosecution and issuance of letters patent or copyright registrations thereon with the
same legal force and effect as if executed by you. You hereby waive and quitclaim to the Company
any and all claims, of any nature whatsoever, which you now or may hereafter have for infringement
of any patents or copyright resulting from any such application for letters patent or copyright
registration assigned hereunder to the Company.




          f. Exception to Assignments. You will advise the Company
promptly in writing of any inventions, original works of authorship, developments,
improvements or trade secrets that you believe meet the criteria in subparagraphs 6b(i), (ii), and
(iii) above for Excluded




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Inventions; and you will at that time provide to the Company in writing all evidence necessary
to substantiate that belief. You understand that the Company will keep in confidence and will not
disclose to third parties without your consent any confidential information disclosed in writing to
the Company relating to Excluded Inventions that qualify under the foregoing subparagraphs.




     7. No Breach of Duty. You represent that your performance of all the
terms of this Agreement and as an employee of the Company does not, and to the best of your present knowledge and
belief, will not breach any agreement or duty to keep in confidence proprietary information
acquired by you in confidence or in trust prior to your employment by the Company. You have not
entered into, and you agree you will not enter into, any agreement either written or oral in
conflict herewith. You are not at the present time restricted from being employed by the Company or
entering into this Agreement.



     8. Returning Company Documents. You agree that, at the time of leaving the employ of
the Company, you will deliver to the Company (and will not keep in your possession or deliver to
anyone else) any and all devices, records, data, notes, reports, proposals, lists, correspondence,
specifications, drawings, blueprints, sketches, materials, equipment, other documents or property,
or reproductions of any aforementioned items belonging to the Company, its successors, affiliates
or assigns. In the event of the termination of your employment, you agree to sign and deliver the
“Termination Certification” attached hereto as Exhibit B.



     9. Non-Solicitation; Non-Competition.



          a. Non-Solicitation of Company Employees and Customers. As a means reasonably designed
to protect the Company’s proprietary information, you agree that, during the term of this Agreement
and for a period of twenty-four (24) months from the conclusion of the Employment Period, you will
not directly or indirectly, either as an individual on her own account or as a partner, joint
venturer, officer, director, stockholder, employee, agent, independent contractor, or otherwise:





	 	i.	 	counsel, solicit, or attempt to induce any person employed by the
Company, except for Adam Fischer or Matt Tebford, whether
that person is a full-time employee, part-time employee, or
independent contractor, to terminate his or her employment or
independent contractor relationship with the Company;
	 
	 	ii.	 	employ any Former Employee of the Company, except for Adam
Fischer or Matt Tebford, whether that person was a full-time
employee, part-time employee, or independent contractor (“Former
Employee” means any person who
was employed by Company within the last twelve (12) months of
your employment); or
	 
	 	iii.	 	solicit to provide, or provide, any of the Company’s customers or
any of the Company’s prospective customers with any product or service
that directly competes with any product or service sold or provided by
the Company. (For example, a computer may be used





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	 	 	 	to make an internet phone call, but computer sales do not directly
compete with phone sales.)





          b. Non-Competition. During the term of your employment by the Company and for a period
of twenty-foul. (24) months after the conclusion of the Employment Period, you shall not, directly
or indirectly, either as an individual on her own account or as a partner, joint venturer, officer,
director, stockholder, employee, agent, independent contractor, or otherwise:





	 	i.	 	engage in any Competitive Business (as defined below) in any area of
the United States where the Company or its parent company are actively
engaged in business on the Closing Date or at any time during the
Employment Term (the “Restricted Territory”) “Competitive Business” means
the business of the Company as conducted on and prior to the date hereof.
	 
	 	ii.	 	have any interest in any person, firm, partnership, joint venture, or
other business entity (collectively, an “Entity”) which is engaged in a
Competitive Business (except as a stockholder holding less than one
percent (1%) of the aggregate number of issued and outstanding shares of a
publicly traded company’s capital stock) in the Restricted Territory; or
	 
	 	iii.	 	provide financial or other assistance or act as an agent of,
consultant for or advisor to any Entity which is or is about to become
engaged in a Competitive Business in the Restricted Territory.





          c. Consideration. These restrictive covenants contained in this paragraph 9 (the
“Restrictive Covenants”) are given and made by you to induce the Company to employ you and to enter
into this Agreement with you, and you hereby acknowledge the sufficiency of the consideration for
the Restrictive Covenants.




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          d. Payment Breach. It is understood and agreed that if the Company or the Purchaser
breach any of their payment obligations under this Agreement or the Purchase Agreement, and fail to
cure such breach within five (5) business days after written notice from you of such breach, then,
provided that the Senior Obligations (as defined in the Subordination Agreement dated September ___,
2007 by and among the Company, the Purchaser, Brookside Technology Partners, Inc., Hilco Financial,
LLC, The Michael P. Fischer Irrevocable Delaware Trust, Michael P. Fischer, The M. Scott Diamond
Irrevocable Delaware Trust and M. Scott Diamond (the “Subordination Agreement”)) have been Paid in
Full (as defined in the Subordination Agreement), the Restrictive Covenants shall be null and void
as contemplated by, and on the terms set forth in, Section 2.6 of the Subordination Agreement;
provided, however, that if the Purchaser or the Company are in good faith contesting their
obligation to make such payment, no such payment breach shall be deemed to have occurred and the
Restrictive Covenants shall continue to apply to you until the dispute is adjudicated, provided
that payment for any disputed amounts shall be made to a mutually agreed third-party escrow agent,
and provided, further that if the adjudication is that the Company or the Purchaser, as applicable,
is not in breach, then in such event, the escrowed funds shall be paid to Company and the
Restrictive Covenants shall continue to apply to you in accordance with the terms of this paragraph
9, and if the adjudication is that the Company or Purchaser, as applicable, is in breach, then in
such event the escrowed funds shall be paid to you, and the Restrictive Covenants shall be null and
void (provided that the Senior Obligations have been Paid in Full).




          e. Independent Covenant. These Restrictive Covenants shall be construed as agreements
independent of any other provision in this Agreement, and the existence of any claim or cause of
action of you against the Company, whether predicated upon this Agreement or otherwise, shall not
constitute a defense to the enforcement by the Company of any Restrictive Covenant.




          f. Reasonableness. Each of the Restrictive Covenants is a reasonable and necessary
restraint of trade; each Restrictive Covenant is supported by valid business interests, including
without limitation the need to protect Company trade secrets and confidential business and
technical information and the need to protect all of its substantial relationships with employees,
current and prospective customers, and vendors, and the twenty-four (24)-month period of
restriction is essential to the full protection of each of those valid business interests.




          g. Scope of Restriction. If any portion of any Restrictive Covenant is held by a court
of competent jurisdiction to be unreasonable, arbitrary, or against public policy for any reason,
that Restrictive Covenant shall be considered divisible as to line of business, time, and
geographic area; if a court of competent jurisdiction should determine the specified lines of
business, the specified period, or the specified geographic area to be unreasonable, arbitrary, or
against public policy for any reason, a narrower line of business, a lesser period, or a smaller
geographic area that is determined to be reasonable, non-arbitrary, and not against public policy
for any reason may be enforced by the Company against you.




          h. Remedies. In the event of a breach by you of any Restrictive Covenant set forth in
this paragraph 9, such a breach would irreparably injure the Company and would leave the Company
with no adequate remedy at law. If legal proceedings should have to be brought by




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the Company against you to enforce any Restrictive Covenant, the Company shall be entitled to
seek all available civil remedies, including without limitation:





	 	i.	 	Preliminary and permanent injunctive relief restraining you from
violating, directly or indirectly, either as an individual on your own
account or as a partner, joint venturer, employee, agent, salesperson,
contractor, officer, director, or stockholder or otherwise, the restrictions
of paragraph 9, above;
	 
	 	ii.	 	Compensatory damages;
	 
	 	iii.	 	Attorneys’ fees in the trial and appellate courts; and
	 
	 	iv.	 	Costs and expenses of investigation, and litigation, including expert
witness fees, deposition costs (appearance fees and transcript charges),
injunction bond premiums, travel and lodging expenses, and all other
reasonable costs and expenses.





     Nothing in this Agreement shall be construed as prohibiting the Company from pursuing any
other legal or equitable remedies available to it for breach or threatened breach of any
Restrictive Covenant; however, no ex parte relief shall be available to Company.



     If you violate any Restrictive Covenant, directly or indirectly, either as an individual on
your own account or as a partner, joint venturer, employee, agent, salesperson, contractor,
officer, director, or stockholder or otherwise, any and all sales made by you (or the corporation,
partnership, limited liability company, joint venture, association, or other business organization
with which he or she is associated) in direct competition with the Company shall be presumed to
have been made by the Company but for the violation of the Restrictive Covenant.



     10. Period of Restriction. Should legal proceedings have to be brought by the Company
against you to enforce any Restrictive Covenant, the period of restriction shall be deemed to begin
running on the date of entry of an order granting the Company preliminary injunctive relief and
shall continue uninterrupted for remainder of the period of restriction; you acknowledge that the
purposes and intended effects of the Restrictive Covenants would be frustrated by measuring the
period of restriction from the date of termination of employment where you fail to honor the
Restrictive Covenant until directed to do so by court order.



     11. Indebtedness. If, during the course of your employment under this Agreement, you
become indebted to the Company for any reason, the Company may, if it so elects, set off any sum
due to the Company from you and collect from you any remaining balance.



     12. Survival. Any termination of your employment or of this Agreement shall have no
effect on the continuing operation of paragraphs 5,6, or 9 for the periods specified therein.



     13. Governing Law. This Agreement and all questions concerning the construction,
validity and interpretation of this Agreement shall be governed by and determined in accordance
with the internal law, and not the law of conflicts, of the State of Kentucky.



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     14. Notices. All demands, notices and communications hereunder shall be in writing and
shall be deemed to have been duly given, if mailed, by registered or certified mail, return receipt
requested, or, if by other means, when received by the other party at the address set forth herein,
or such other address as may hereafter be furnished to the other party by like notice. Notice or
communication hereunder shall be deemed to have been received on the date delivered to or received
at the premises of the addressee if delivered other than by mail, and in the case of mail, three
days after the depositing of the same in the United States mail as above stated (or, in the case of
registered or certified mail, by the date noted on the return receipt). Notices shall be addressed
as follows:



	 	 	 	 	 
	 

	 	If to you:
	 	11500 Blankenbaker Access Dr.
	 

	 	 	 	Suite 103
	 

	 	 	 	Louisville, KY 40299
	 
	 	 	 	 
	 

	 	With a copy to:
	 	Kruger, Schwartz & Morreau
	 

	 	 	 	Two Paragon Centre, Suite 220
	 

	 	 	 	6040 Dutchmans Lane
	 

	 	 	 	Louisville, Kentucky 40205
	 

	 	 	 	Attention: Rand E. Kruger, Esq.
	 
	 	 	 	 
	 

	 	If to the Company:
	 	US Voice and Data, LLC
	 

	 	 	 	11500 Blankenbaker Access Dr.
	 

	 	 	 	Suite 103
	 

	 	 	 	Louisville, KY 40299
	 
	 	 	 	 
	 

	 	With a copy to:
	 	Shumaker, Loop & Kendrick, LLP
	 

	 	 	 	101 East Kennedy Boulevard
	 

	 	 	 	Suite 2800
	 

	 	 	 	Tampa, Florida 33602
	 

	 	 	 	Attention: Julio C. Esquivel, Esq.






     15. Severability. Any part, provision, representation or warranty of this Agreement
which is prohibited or which is held to be void or unenforceable shall be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining provisions hereof.



     16. Successors and Assigns; Assignment of Agreement. This Agreement shall bind and
inure to the benefit of and be enforceable by the parties hereto. As used in this Agreement,
“Company” shall mean the Company as hereinbefore defined and any successors to its businesses
and/or assets as aforesaid which assume and agree to perform this Agreement by operation of law, or
otherwise. This Agreement is personal to you and without the prior written consent of the Company
shall not be assignable by you.



     17. Waiver; Amendment. The failure of any party to insist upon strict performance of a
covenant hereunder or of any obligation hereunder, irrespective of the
length of time for which such failure continues, shall not be a waiver of such party’s right
to demand strict compliance in



12









 




the future. No consent or waiver, express or implied, to or of any breach or default in the
performance of any obligation hereunder, shall constitute a consent or waiver to or of any other
breach or default in the performance of the same or any other obligation hereunder. No term or
provision of the Agreement may be waived unless such waiver is in writing and signed by the party
against whom such waiver is sought to be enforced. This Agreement shall not be modified except in
writing executed by all parties hereto.




     18. Entire Agreement. This Agreement constitutes the entire agreement between the
parties hereto with respect to the subject matter contemplated herein and supersedes all prior
agreements, whether written or oral, between the parties, relating to the subject matter hereof.



     19. Captions. Titles or captions of paragraphs contained in this Agreement are
inserted only as a matter of convenience and for reference, and in no way define, limit, extend or
describe the scope of this Agreement or the intent of any provision hereof.



     20. Counterparts. For the purpose of facilitating proving this Agreement, and for
other purposes, this Agreement may be executed simultaneously in any number of counterparts. Each
counterpart shall be deemed to be an original, and all such counterparts shall constitute one and
the same instrument.hy



     21. Capitalized Terms. Capitalized terms used but not defined in this Agreement shall
have the meanings given to them in the Purchase Agreement.



     22. Reasonableness. It is understood and agreed by the parties that whenever any
consent or approval is required to be given by the Company, its Board of Directors, its President,
or any other officer of the Company as a condition to an action or omission to act by you, such
consent or approval shall not be unreasonably withheld and/or conditioned or delayed by the Company
or the person from whom such consent or approval was required. The Company further agrees that any
discretion permitted under this Agreement shall be reasonably exercised in good faith by the
Company, its Board of Directors, its President, or any other officer of the Company in all
instances.



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     Please execute a copy of this letter Agreement in the space below and return it to the
undersigned at the address set forth above to confirm your understanding and acceptance of the
agreements contained herein.



	 	 	 	 	 
	 	Very truly yours,



US Voice and Data, LLC

 	 
	 	By:  	/s/ MICHAEL NOLE
 	 
	 	 	Name:  	MICHAEL NOLE 	 
	 	 	Title:  	CHAIRMAN 	 



	 	 	 	 	 
	Accepted and agreed to:

 	 	 
	
 	 	 
	M. Scott Diamond 	 	 
	 	 	 
	 
	For purposes of Paragraph 4(b) only:



The M. Scott Diamond Irrevocable

     Delaware Trust

 	 	 
	By:  	 	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 



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     Please execute a copy of this letter Agreement in the space below and return it to the
undersigned at the address set forth above to confirm your understanding and acceptance of the
agreements contained herein.



	 	 	 	 	 
	 	Very truly yours,



US Voice and Data, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	Accepted and agreed to:

 	 	 
	/s/  M. Scott Diamond
 	 	 
	M. Scott Diamond 	 	 
	 	 	 
	 
	For purposes of Paragraph 4(b) only:



The M. Scott Diamond Irrevocable

     Delaware Trust

 	 	 
	By:  	/s/ James W Traver
 	 	 
	 	Name:  	James W Traver 	 	 
	 	Title:  	Special Purpose Officer,

NAT City Trust Co. of Delaware 	 	 



14









 







EXHIBIT A 




LIST OF PRIOR INVENTIONS

AND ORIGINAL WORKS OF AUTHORSHIP




	 	 	 	 	 
	TITLE
	 	DATE
	 	IDENTIFYING NUMBER

OR BRIEF DESCRIPTION
	 	 	 	 	 





15









 






EXHIBIT B 




US VOICE AND DATA, LLC

TERMINATION CERTIFICATION



This is to certify that I do not have in my possession, nor have I failed to return, any devices,
records, data, notes, reports, proposals, lists, correspondence, specifications, drawings,
blueprints, sketches, materials, equipment, other documents or property, or reproductions of any
aforementioned items belonging to US Voice and Data, LLC, its subsidiaries, affiliates, successors
or assigns (together, the “Company”).




	 	 	 	 	 
	 	 	 
	Date:                      	
 	 
	 	Employee’s Signature 	 
	 
	 	
 	 
	 	Name of Employee (typed or printed) 	 
	 	 	 



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Schedule 1 




Responsibilities 



You will be responsible for all Sales, Operations, and Customer Service functions of the North
Central Region, including but not limited to the following:





	 	1.	 	Maintaining headcount of all Regional Sales, Operations and Customer Service
personnel to include recruiting, hiring, and training.
	 
	 	2.	 	Overall responsibility for Sales, as follows:






	 	(a)	 	Manage and direct Sales and/or Branch Managers in order to achieve annual
Sales Targets and Budget requirements.

	 
	 	(b)	 	Strategic planning on specific sales transactions.
	 
	 	(c)	 	Meet with strategic prospects and participate in the sales process when
necessary.
	 
	 	(d)	 	Assist in the solicitation and deployment of vendor resources to assist in
sales process.
	 
	 	(e)	 	Implementation and institutionalization of new processes, products, and/or
services for the North Central Region that increase sales and promote customer
loyalty.






	 	3.	 	Overall responsibility for Operations, as follows:






	 	(a)	 	Manage and direct the VP — OPS to insure our compliance with stated goals
regarding installations and service objectives, as well as meeting associated
budget for OPS Department.






	 	4.	 	Overall daily responsibilities for Customer Service, as follows:






	 	(a)	 	Manage and direct Customer Service Department personnel to insure that they
are delivering the highest level of training and support services to our
customers.






	 	5.	 	Implementation and institutionalization of programs that build customer
relationships and loyalty.
	 
	 	6.	 	Work with manufacturers to provide support and training to our OPS and CS
groups.
	 
	 	7.	 	Participation in National meetings, planning session, and budgeting.





North Central Region will include, but not be limited to:





	 	1.	 	Kentucky
	 
	 	2.	 	Indiana
	 
	 	3.	 	Ohio
	 
	 	4.	 	Illinois




The initial plan for this Region will be to have 5 District Offices and total revenue of 25
Million dollars. A financial business plan and budget will be finalized and agreed upon by BKSD
Senior Management and US V&D Principals.





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