EXECUTIVE EMPLOYMENT AGREEMENT
This EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement") is made and
entered into as of the date set forth below (hereinafter referred to as the
"Effective Date") by and between INET TECHNOLOGIES, INC., (the "Company"), and
XXXX XXXXXXX (the "Executive") (collectively, the "Parties").
WITNESSETH:
WHEREAS, the Executive has considerable experience, expertise and
training in management related to the types of services offered by the Company;
and
WHEREAS, the Company has agreed to employ Executive, and Executive has
agreed to be employed by the Company, subject to and on the terms and conditions
set forth herein; and
WHEREAS, both the Company and the Executive have read and understood
the terms and provisions set forth in this Agreement, and have been afforded a
reasonable opportunity to review the Agreement with their respective legal
counsel.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants contained in this Agreement, the Company and the Executive, intending
to be legally bound hereby, agree as follows:
1. EMPLOYMENT. Subject to the terms and conditions hereinafter set
forth, the Company hereby agrees to employ the Executive in the position of
Senior Vice President of Sales and Marketing, reporting directly to the
President and CEO and the Executive hereby accepts such employment.
2. TERM. This Agreement shall continue in full force and effect
for a period of two (2) years, or until terminated by one of
the Parties in accordance with Section 8. Such term shall be
referred to as the "Term of Employment". Upon the expiration
of the initial two (2) year term, this Agreement shall
automatically renew for one (1) additional year, unless
terminated by one of the Parties in accordance with Section 8.
3. DUTIES AND AUTHORITY.
(a) During the Term of Employment, the Executive shall render his
services to the Company as the Company's Senior Vice President of Sales and
Marketing. During the Term of Employment, the Executive shall devote
substantially all of his business time, efforts and entire energy and skill to
the business of the Company and will promote the interests of the Company, in
accordance with the reasonable directions and orders of the Chief Executive
Officer ("CEO"). Any such duties, powers and authority shall not violate any
federal, state or local laws or regulations.
4. COMPENSATION.
(a) Base Salary. In consideration of the services to be rendered by
the Executive pursuant to this Agreement, including, without limitation, any
services which may be rendered by the Executive as an officer, director or
member of any committee of the Company or any direct or indirect subsidiary
of the Company, the Company shall pay or cause to be paid to the Executive
during the Employment Term, and the Executive shall accept, a starting annual
compensation at the rate of one hundred sixty-eight thousand dollars
($168,000.00) per annum. The Company's obligation to pay Base Salary shall
begin to accrue on the Commencement Date (which is defined as the 1st day on
which Executive begins active employment with the Company), and Base Salary
shall be
EXECUTIVE EMPLOYMENT AGREEMENT - PAGE 1
payable in accordance with the Company's standard payroll practices which are
in effect from time to time during the Employment Term. The Executive's Base
Salary shall be subject to all applicable withholding and other taxes.
(b) Variable Compensation. In addition to the Base Salary, during
the Employment Term, the Executive shall be eligible for an annual additional
compensation (the "Variable Compensation"). The target amount of the Variable
Compensation payable to the Executive shall be one hundred fifty thousand
dollars ($150,000.00) per year.
(c) Special Bonus. The Company agrees that the Executive shall be
paid a one-time lump sum bonus of one hundred forty four thousand dollars
($144,000.00) no later than October 1, 1999, provided Executive has not
terminated this Agreement before that date in accordance with the terms of
Section 8.
5. EMPLOYMENT BENEFITS. During the Employment Term, and as may
otherwise be provided below, the Executive shall be entitled to participation
in all vacation and fringe benefit programs and plans established by the
Company for executives of the Company.
6. OPTION GRANTS. The Executive shall be entitled to a grant of
options to purchase shares of the Company's Common Stock, (the "Option")
under the following terms:
(a) Grant of Options. The Company agrees to grant the Executive an
Option to purchase from the Company an aggregate of two hundred thousand
(200,000) shares of the Common Stock, under the Company's 1998 Stock Option /
Stock Issuance Plan. The Grant Date for purposes of this Option shall be the
date on which the Executive begins his employment with the Company.
(b) Vesting and Exercise of Options. The Executive shall have the
right to exercise the Option with respect to all or part of any portion of
the non qualified Option Stock that has vested in accordance with the
following schedule, immediately upon its vesting:
(1) On [[January 1, 2000]], provided Executive is still employed
by the Company, the Executive's Option to purchase twenty-five
thousand (25,000) shares of the non qualified Option Stock, shall
vest.
(2) On [[August 31, 2000]], provided Executive is still employed
by the Company, the Executive's Option to purchase twenty-five
thousand (25,000) shares of the non qualified Option Stock, shall
vest.
(3) On [[August 31, 2001]], provided Executive is still employed
by the Company, the Executive's Option to purchase twenty-five
thousand (25,000) shares of the non qualified Option Stock, shall
vest.
(4) On [[August 31, 2002]], provided Executive is still employed
by the Company, the Executive's Option to purchase twenty-five
thousand (25,000) shares of the non qualified Option Stock, shall
vest.
(5) In the event that a Change of Control (as defined in Section
13 of this Agreement) occurs at any time during the Executive's
employment, the Executive's Option to purchase all two hundred
thousand (200,000) shares of the Option Stock shall immediately
vest, notwithstanding the provisions of clauses (1) through (4) of
this subsection (b), above.
EXECUTIVE EMPLOYMENT AGREEMENT - PAGE 2
(c) Status of the Executive. The Executive shall not be considered a
stockholder of the Company with respect to any shares of stock subject to these
Options, except to the extent that the shares of Option Stock have been
purchased by and transferred to the Executive.
(d) Other Option Provisions. Except as otherwise provided
herein, the terms of Options shall be governed by the Company's Stock Option
Plan in effect on the Effective Date and the terms of the stock option agreement
governing such grant.
7. EXPENSES. During the Employment Term, the Company shall reimburse
the Executive, upon presentation of proper vouchers or receipts, for all
reasonable travel, entertainment and other out-of-pocket expenses reasonably and
appropriately incurred by the Executive in the performance of his duties
hereunder in accordance with the Company's travel and business expense policy.
8. TERMINATION.
(a) Any termination of the Executive's employment by the Company or the
Executive pursuant to subsections 8(b), (c), (d) or (e) shall be communicated by
a written notice (a "Termination Notice") to the Executive or the Company, as
applicable, in accordance with Section 12 hereof. For purposes of this
Agreement, a "Termination Notice" shall mean a notice which is based upon and
shall indicate the termination provision relied upon in this Agreement, as well
as the effective date of such termination (the "Termination Date") and, except
for termination under subsection 8(c), shall set forth in reasonable detail the
facts and circumstances claimed to provide a basis for termination of the
Executive's employment under the provision so indicated. Provided that the
Company does not violate any term of this Agreement or applicable law, this
Agreement provides the exclusive remedies and exclusive severance pay for any
termination of the Executive, and if the employment of the Executive is
terminated, the Company shall have no further obligations except as expressly
provided under this Agreement, or as otherwise provided by law. As a condition
to receiving any payments upon or after termination for any cause (other than
amounts, if any, due for past services, or other than the payment of amounts
accrued and unpaid under Section 4 hereof through the Termination Date), the
Executive must release the Company from all potential claims for the payment of
monies which may be due under this Agreement.
(b) Cause.
(i) The Company may, at any time, and in its sole discretion,
terminate the employment of the Executive hereunder for Cause. For
purposes of this Agreement, "Cause" means the Executive's (1)
substantial and material violation of the policies or procedures of the
Company or any of its Affiliates; (2) willful and reckless failure to
perform the duties or responsibilities set forth under Section 3 of
this Agreement; (3) gross insubordination or recklessly and
intentionally taking of any action in conflict with the interests and
objectives of the Company or any of its Affiliates; (4) commission of a
fraudulent or dishonest act in connection with his employment with the
Company or any of its Affiliates; or (5) plea of guilty or nolo
contendere to or conviction of any felony or an act of moral turpitude.
(ii) If the employment of the Executive hereunder is
terminated pursuant to this subsection 8(b), the Company shall have no
further obligations to the Executive hereunder after the Termination
Date other than the payment of Base Salary accrued and unpaid under
Section 4 hereof through the Termination Date, or except as otherwise
provided by law.
(c) Termination Without Cause. At any time after the initial year of
the term of this Agreement, in the event the Company desires to terminate the
employment of the Executive hereunder for actions other than Cause, or for any
or no reason, ("without cause"), by delivery to him of a Termination Notice,
such termination shall be
EXECUTIVE EMPLOYMENT AGREEMENT - PAGE 3
effective thirty (30) days after the date of the Termination Notice; provided
however, the Company shall be required to pay the Severance Pay to Executive,
as defined in and according to the terms of Section 8(h) below.
(d) Resignation. The Executive shall be entitled to terminate this
Agreement at any time, for any reason, by providing the Company with a
written Notice of Resignation at least thirty (30) days prior to his intended
resignation date.
(e) Disability
(i) In the event that the CEO, acting reasonably and in good
faith, determines that the Executive is incapacitated by reason of a
physical or mental illness which is long-term in nature and which
prevents the Executive from performing the essential functions of his
position, with reasonable accommodation, and the CEO has been advised
in writing by the Company's physician, following a physical
examination, that such incapacity can reasonably be expected to prevent
the Executive from performing the essential functions of his position
for a period of at least six (6) months in any twelve (12) month
period, the CEO may terminate the Executive's employment hereunder;
provided however, the Company shall be required to pay the Severance
Pay to Executive, as defined in and according to the terms of Section
8(h) below. The Company may require the Executive to have the physical
examination described in the preceding sentence at any time but only
for the sole and limited purpose of determining whether or not the
Executive has a long-term disability, and the Executive agrees to
submit to such examination no later than ten (10) days after receiving
written notification from the Company.
(ii) If the employment of the Executive hereunder is terminated
pursuant to this subsection 8(e)(i) because of a long-term
disability, the Executive shall receive the Severance Pay in
accordance with Section 8(h), as well as payments pursuant to the
Company's disability policy which is in effect for executives of the
Company, Base Salary and Variable Compensation earned through the
Termination Date. If the employment of the Executive hereunder is
terminated pursuant to this paragraph 8(e)(i), the Company shall
have no further obligations hereunder except as expressly provided
under this paragraph 8(e)(i), or as otherwise provided by law.
(iii) Upon the termination of this Agreement by reason of the
Executive's disability, such termination shall not terminate or
adversely affect any rights of the Executive then vested or accrued
under any disability or other fringe benefit program of the Company
then in effect. During the period of the Executive's disability
prior to the termination of this Agreement, the Executive shall be
entitled to receive any disability benefits provided by the Company
as part of its short term or long term disability plan, if any.
(iv) The Executive represents to the Company that, as of the
date of this Agreement, to the best of his knowledge, he is in good
health and is not aware of any health condition that is likely to
lead to a temporary or long-term disability within the Employment
Term.
(f) Death. If the Executive dies during the Employment Term, the
employment of the Executive hereunder shall terminate immediately upon his
death. If the employment of the Executive hereunder is terminated pursuant to
this subsection 8(f), the Company shall have no further obligations hereunder
after the date of death other than the payment to the Executive's estate,
legal representatives, heirs, successors, assigns or other beneficiaries of
Base Salary and Variable Compensation accrued and unpaid under Section 4
through the Termination Date. If the employment of the Executive is
terminated pursuant to this subsection 8(f), the Company shall have no
further obligations hereunder except as expressly provided under this
subsection 8(f), or as otherwise provided by law.
EXECUTIVE EMPLOYMENT AGREEMENT - PAGE 4
(g) Voluntary Termination. If the Executive voluntarily terminates his
employment hereunder, the Company shall have no further obligations to the
Executive hereunder after the Termination Date other than the payment of Base
Salary and any Variable Compensation accrued and unpaid under Section 4 hereof
through the Termination Date, except as required by law.
(h) Severance Pay. If, pursuant to this Agreement, Executive is to be
paid Severance Pay, then the Company shall pay to the Executive, in a lump sum
cash payment within five (5) days after Executive's execution of a valid release
as set forth in Section 8(a) above, the following (the "Severance Amount"):
(i) Executive's earned but unpaid Base Salary through the
Termination Date;
(ii) A prorated amount of Base Salary as in effect immediately
prior to the date of termination, but without regard to
any compensation deferral election under any plan, program
or arrangement, qualified or nonqualified, maintained or
contributed to by the Company, including but not limited
to a cash-or-deferred arrangement described in Section
401(k) of the Internal Revenue Code of 1986, as amended,
(the "Code") a cafeteria plan describe in Code Section 125
or a nonqualified deferred compensation plan. This portion
of the Severance Amount (the "Prorated Amount") will be
computed as follows:
(a) In the event the Company terminates the Executive's
employment pursuant to the terms of Sections 8(c)
or 8(e) during the first twelve months of
Executive's employment, the Prorated Amount shall
be the equivalent of twelve months' Base Salary.
(b) In the event the Company terminates the Executive's
employment pursuant to the terms of Sections 8(c)
or 8(e) after the first twelve months of
Executive's Employment, the Prorated Amount shall
be the equivalent of one month's Base Salary for
every month remaining between the Termination Date
and August 31st, 2001, but in no event shall be
less than six months' Base Salary.
(iii) Variable Compensation in an amount equal to one hundred
fifty thousand dollars ($150,000) less any Variable
Compensation amounts paid during the same calendar year.
(iv) Outplacement benefits at a maximum Company cost of $15,000;
and
(v) In addition, Executive will be entitled to twelve (12)
calendar months of continued medical coverage according to
the same terms to which he was entitled to medical
coverage on the date immediately preceding the termination.
9. DISCLOSURE OF INFORMATION.
(a) The Executive shall not, during or after the Employment Term,
disclose any confidential or proprietary information of the Company or any of
its affiliates to any person, firm, company, association, limited liability
company, or other entity for any reason or purpose whatsoever, except in the
performance of the duties assigned to the Executive in this Agreement, nor
shall the Executive make use of any such confidential or proprietary
information for his own purpose or for the benefit of any person, firm,
limited liability company, company or other entity, except the Company or any
of its affiliates. The term "confidential or proprietary information" means
all information which relates to the business of the Company, which is or has
been disclosed
EXECUTIVE EMPLOYMENT AGREEMENT - PAGE 5
to the Executive orally or in writing by directors, employees, former
employees, consultants or others in a confidential relationship with the
Company or obtained by virtue of work performed for the Company or any of its
affiliates, and is developed by the Company or any of its affiliates or was
developed by the Company or any of its affiliates, including, without
limitation, trade secrets, research and development activities, computer or
software or software concepts in development, books and records, customer
lists, vendor lists, suppliers, distribution channels, pricing information
and private processes.
(b) The Company and the Executive acknowledge that the term
"confidential or proprietary information" shall not include information (1)
that is or becomes generally available to the public (other than as a result
of an unauthorized disclosure by the Executive), (2) which must be disclosed
by law but only to the extent necessary to comply with such law, (3) is
received from a third party having the right to make disclosure thereof, (4)
that is in the Executive's possession prior to its disclosure to him by the
Company; or (5) is approved for release by written authorization of the
Company. Additionally, the Company and the Executive acknowledge that the
term "confidential or proprietary information" does not include the general
knowledge, experience, memory, and skill acquired by the Executive or the
general "know-how" information acquired by the Executive during the course of
his service for the Company.
(c) The Executive acknowledges that disclosure of, or any
contravention of this Section 9, regardless of the materiality of such
disclosure or contravention, may result in immediate, direct, irreparable and
substantial damage to the Company for which a remedy at law may not be
sufficient and therefore, the Company shall be entitled to apply for
injunctive relief and/or specific performance by any court of competent
jurisdiction, in addition to any other rights or remedies it might have at
law or equity.
10. NON-COMPETITION.
(a) Executive acknowledges that, in exchange for the execution
of the noncompetition restriction set forth below in this Section 10,
Executive has received or will receive substantial, valuable consideration,
including the consideration set forth in Sections 2, 4,5,6 and 8, as well as
access to confidential information as defined in Section 9 and/or specialized
training. Executive agrees that this consideration constitutes fair and
adequate consideration for the execution of the non-competition restriction
set forth in this Section 10.
(b) During the Employment Term and thereafter, until the end of
a period of twelve months commencing on the Termination Date (the
"Non-Competition Period"), the Executive agrees that, without the prior
written consent of the Company:
(i) Executive will not, either alone or with others, as
principal, agent, partner, investor, lender, guarantor, lessor,
sublessor, distributor, promoter or advertiser, or in any other
capacity, carry on, be engaged in, or have any interest or otherwise be
connected or affiliated or associated with or assist any corporation,
partnership, limited liability company or partnership, proprietorship,
firm, association or other entity which is engaged in any manner in, or
otherwise competes with, the Company (including, without limitation,
any strategic plans) in the business field, products or services of the
kind and character in which Executive was engaged, either directly or
indirectly, on behalf of the Company. The restriction herein contained
shall be limited in geographical scope to each of the geographical
areas in the United States in which the Company conducts business,
provides services or sells products at any time during Executive's
employment, which the Parties hereto acknowledge is national in scope;
and
(ii) Executive shall not, directly or indirectly, solicit,
employ or otherwise engage or assist, as an employee, independent
consultant or otherwise, in the solicitation, employment or engagement
of any person who is an employee of the Company or any affiliate of the
Company, or in any manner induce or attempt to induce any employee of
the Company to terminate his or her employment with the
EXECUTIVE EMPLOYMENT AGREEMENT - PAGE 6
Company. For purposes of this covenant, "an employee of the Company"
shall refer to employees who are still actively employed by, or
doing business with, the Company at the time of the attempted
solicitation, employment or engagement. Additionally, the Executive
shall not tortiously interfere with the relationship of the Company
with any person who is a customer, vendor, supplier or consultant of
or to the Company. For purposes of this covenant, "a customer,
vendor, supplier or consultant of or to the Company" shall refer to
customers, vendors, suppliers or consultants who are still actively
doing business with or serving the Company at the time of the
attempted interference.
(c) The Executive and the Company agree that, if, in the opinion of any
court of competent jurisdiction, the covenants of non-competition and
non-solicitation are not reasonable in any respect, such court shall have the
right, power and authority to excise or modify such provision or provisions of
these covenants as to the court shall appear not reasonable and to enforce the
remainder of these covenants as so amended.
(d) The Executive acknowledges that disclosure of, or any
contravention of this Section 10, regardless of the materiality of such
disclosure or contravention, may result in immediate, direct, irreparable and
substantial damage to the Company for which a remedy at law may not be
sufficient and, therefore, the Company shall be entitled to apply for
injunctive relief and/or specific performance by any court of competent
jurisdiction, in addition to any other rights or remedies it might have at law
or equity.
REPRESENTATIONS AND WARRANTIES OF THE EXECUTIVE. The Executive hereby
represents and warrants to the Company that (a) neither the execution of this
Agreement by the Executive nor the performance by the Executive of any of his
obligations or duties hereunder will conflict with or violate or constitute a
breach of the terms of any employment or other agreement to which the Executive
is a party or by which the Executive is bound, and (b) the Executive is not
required to obtain the consent of any person, firm, company, limited liability
company or other entity in order to enter into this Agreement or to perform any
of his obligations or duties hereunder.
11. NOTICES. Any notice, request, information or other document (a
"Notice") to be given under this Agreement to any party by any other party shall
be in writing and shall be sufficiently given if delivered personally, or if
sent by prepaid certified, registered or express mail, or if transmitted by
facsimile machine addressed as follows:
If to the Company:
Inet Technologies, Inc.
0000 Xxxx 00xx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxx 00000-0000
Attn.: President
If to the Executive:
Xxxx Xxxxxxx
000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
or to such other address as a party hereto may hereafter designate in the same
manner provided in this Section. Any notice delivered to the party to whom it is
addressed as provided above shall be deemed to have been given and received on
the day it is so delivered at such address, provided that, if such day is not a
day on which the banks in New York, New York are open for business (a "business
day"), then the notice shall be deemed to have been given and received on the
next business day. Any notice sent by prepaid registered mail shall be deemed to
have been given and received on the fifth business day following the date of
mailing. Any notice transmitted by
EXECUTIVE EMPLOYMENT AGREEMENT - PAGE 7
facsimile or other form of recorded communication shall be deemed to have
been given and received on the first business day after its transmission.
12. CHANGE IN CONTROL. If the Company should undergo a "Change in
Control" as defined in this section, the parties agree as follows:
(a) Compensation. In the event that this Agreement is terminated at
any time within two (2) years after the date of a Change in Control, as
defined in this section, by the Company communicating a Notice of Termination
Without Cause, the Company agrees to pay the Executive the Severance Pay
required to pursuant to Section 8(h). These payments shall be made within
thirty (30) days after the effective date of termination. Further, in the
event Executive desires to terminate his employment for "Good Reason" as
herein defined, by reason of a Change of Control, Executive shall be paid the
Severance Pay required pursuant to Section 8(h). The term "Good Reason" shall
mean (i) the demotion (i.e. reassignment to a position of materially lesser
rank or status), (ii) substantial reduction in annual Base Salary, (iii)
reduction in benefits (unless such reduction is made uniformly in a plan of
general application to all of the Company's substantially similar employees),
or (iv) reassignment to a location that is more than fifty (50) miles from
the Executive's then current residence without his consent.
(b) Benefits. In addition, Executive will be entitled to twelve (12)
calendar months of continued medical coverage according to the same terms to
which he was entitled to medical coverage on the date immediately preceding
the Change in Control, as well as the other benefits required pursuant to
Section 8(h).
(c) Definitions. For purposes of this Agreement, a "Change in
Control" shall mean a change in ownership or control of the Company effected
through any of the following transactions:
(i) a merger, consolidation or reorganization approved by the
Company's stockholders, unless securities representing more than fifty
percent (50%) of the total combined voting power of the voting
securities of the successor corporation are immediately thereafter
beneficially owned, directly or indirectly and in substantially the
same proportion, by the persons who beneficially owned the Company's
outstanding voting securities immediately prior to such transaction,
(ii) any stockholder-approved transfer or other disposition of
all or substantially all of the Company's assets, or
(iii) the acquisition, directly or indirectly by any person or
related group of persons (other than the Company or a person that
directly or indirectly controls, is controlled by, or is under common
control with, the Company), of beneficial ownership (within the meaning
of Rule 13d-3 of the Securities Exchange Act of 1934) of securities
possessing more than fifty percent (50%) of the total combined voting
power of the Company's outstanding securities pursuant to a tender or
exchange offer made directly to the Company's stockholders which the
Board of Directors recommends such stockholders to accept.
13. ENTIRE AGREEMENT. This Agreement contains the entire
understanding between the Company and the Executive with respect to the
employment of the Executive and supersedes all prior negotiations and
understandings between the Company and the Executive with respect to the
employment of the Executive by the Company. This Agreement may not be amended
or modified except by a written instrument signed by the Company and the
Executive.
14. SEVERABILITY. In the event any one or more provisions of this
Agreement is held to be invalid or unenforceable, such invalidity or
unenforceability shall attach only to such provision or part of such
provision,
EXECUTIVE EMPLOYMENT AGREEMENT - PAGE 8
and shall not affect the validity or enforceability of the other provisions
hereof and the remaining part of such provision and all other provisions
shall remain in full force and effect.
15. APPLICABLE LAW: SUBMISSION TO ARBITRATION.
(a) Applicable Law. This Agreement and the rights, obligations and
relations of the parties hereto shall be governed by and construed and enforced
in accordance with the laws of the State of Texas without regard to the rules
thereof relating to conflict of laws. However, both Parties acknowledge that
Section 16(b) is governed by the Federal Arbitration Act and to the extent that
it is inconsistent with Texas law, it will supercede Texas law relating to the
arbitrability of any disputes.
(b) Arbitration.
(i) Any disputes between the Parties including statutory
and/or common law tort claims, other than disputes relating to the
operation of and the enforcement of Sections 9 and 10 hereof, which
cannot be resolved by negotiation between the parties hereto, shall be
submitted to, and determined by, arbitration in Dallas, Texas in
accordance with the rules of the American Arbitration Association
("AAA") and the provisions of this Section 16, and the parties hereto
agree to be bound by the final award of the arbitrator in any such
proceeding. Notwithstanding the foregoing, the Executive and the
Company acknowledge that claims for workers' compensation or
unemployment compensation benefits are not covered by this Agreement.
Moreover, the Executive and the Company further acknowledge that this
Section shall not prohibit the Executive from filing a charge or
complaint with any governmental agency.
(ii) Either party may initiate an arbitration proceeding by
delivery of written notice to the other party hereto. Resolution of
such dispute shall be resolved by a majority vote of a panel of three
arbitrators. Within 30 days after giving or receiving a demand for
arbitration, the Company and the Executive shall each select one
arbitrator. Such arbitrators shall be freely selected and the parties
shall not be limited in their selection to any prescribed list. The
arbitrators chosen by the Company and the Executive shall, by mutual
consent, select the third arbitrator.
(iii) The decision of the arbitrators shall be in writing and
presented in separate findings of fact and law. The award of the
arbitrators shall be final and binding on the parties from which no
appeal maybe taken and an order confirming the award or judgment upon
the award may be entered into in any court having jurisdiction there
over.
(iv) Prior to the appointment of the arbitrator, the Company
or the Executive may seek provisional remedies, including, without
limitation, temporary restraining orders and preliminary injunctions.
After the appointment of the arbitrators, the arbitrators shall have
sole authority to grant such provisional remedies as the arbitrators,
in their sole discretion, deem necessary or appropriate.
(v) The arbitrators shall have the authority to award any
relief permitted by relevant federal or state statute, including,
without limitation, back wages, front wages, actual damages,
compensatory damages, punitive damages, attorneys' fees, and costs
associated with the arbitration proceeding. The arbitrators, in the
award, may assess the fees and expenses of the arbitrators and of the
arbitration proceeding and the witness and attorney's fees of the
parties or any part thereof, against either the Company or the
Executive or both of them, taking into account the circumstances of the
case. Except as assessed by the arbitrators in the award, the Company
and the Executive shall each bear their own costs in connection with
the arbitration proceeding. Notwithstanding the foregoing, the Company
shall bear 100% of the aggregate fees and expenses of the arbitrators.
EXECUTIVE EMPLOYMENT AGREEMENT - PAGE 9
16. HEADINGS. The headings of sections and subsections of this
Agreement are for convenience of reference only and are not to be considered
in construing this Agreement.
17. ACCOUNTING. If the Executive breaches or threatens to breach the
covenants contained in Sections 9 and 10, the Company shall have the right to
seek relief from an arbitration panel or a court of law to require the
Executive to account for and pay over to the Company all compensation,
profits, monies, accruals, increments or other benefits derived or received
by the Executive as the result of any action constituting a breach of the
covenants contained in Sections 9 and 10 hereto.
18. EXECUTION IN COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, but
all of which, when taken together, shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the day and year first written below.
INET TECHNOLOGIES, INC.
By: /s/ Xxxx Xxxxxxx Date: August 30, 1999
------------------------------- ---------------------
Name: Xxxx Xxxxxxx
-------------------------------
Title: President and Chief Executive
Officer
-------------------------------
EXECUTIVE
/s/ Xxxx Xxxxxxx Date: August 30, 1999
---------------------------------- ---------------------
Xxxx Xxxxxxx
EXECUTIVE EMPLOYMENT AGREEMENT - PAGE 10
