1
EMPLOYMENT AND NON-COMPETE AGREEMENT
THIS AGREEMENT entered into as of the 15th day of April 1999, by and
between SONUS COMMUNICATIONS, INC., a Virginia corporation ("Employer") and
XXXXXXX X. XXXX ("Employee").
WHEREAS, Employer desires the Employee's employment with Employer and the
Employee wishes to accept such employment; and
NOW, THEREFORE, in consideration of the above premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE 1.
Definitions
"Agreement" means this Employment Agreement, as amended from time to time.
"Affiliate" has the meaning set forth in Rule 12b-2 of the regulations
promulgated under the Securities Exchange Act of 1934, as amended.
"Compensation" means Salary and Employee Benefits and other compensation
paid or to be paid hereunder.
"Board of Directors" means the board of directors of Employer.
"Confidential Information" means (i) any and all trade secrets and other
information concerning the business and affairs of Employer and its Affiliates
and including, without limitation, product specifications, data, know-how,
formulae, compositions, processes, designs, sketches, photographs, graphs,
drawings, samples, inventions and ideas, past, current, and planned research and
development, current and planned manufacturing or distribution methods and
processes, customer lists, current and anticipated customer requirements, price
lists, market studies, business plans, computer software and programs (including
object code and source code ), computer software and database technologies,
systems, structures, and architectures (and related formulae, compositions,
processes, improvements, devices, know-how, inventions, discoveries, concepts,
ideas, designs, methods and information, and any other information however
documented), that is a trade secret within the meaning of any applicable state
trade secret law; (ii) information concerning the business and affairs of
Employer and its Affiliates (which includes historical financial statements,
financial projections and budgets, historical and projected sales, capital
spending budgets and plans, the names and backgrounds of key personnel,
personnel training and techniques and materials, however documented; and (iii)
notes, analysis, compilations, studies, summaries, and other material prepared
by or for Employer containing or based on, in whole or in part,
2
any information included in the foregoing that was acquired by Employee during
the Employment Period.
"Disability" has the meaning set forth in Section 6.2.
"Employee Benefits" has the meaning set forth in Section 3.1(b).
"Employment Period" means the term of employee's employment under this
Agreement.
"For Cause" means (i) Employee's incompetence, negligence,
insubordination, misconduct in office, or breach of any representation,
warranty, covenant or other obligation or term of this Agreement including,
without limitation, the non-competition, confidentiality and non-solicitation
provisions contained herein; provided, however, that, prior to termination under
this clause (i), Employer shall specify in reasonable detail the incompetence,
gross negligence, misconduct or breach in a written notice to Employee and, in
the event of a breach by Employee of a representation, warranty, covenant or
other obligation or term of this Agreement, shall, before terminating Employee,
provide Employee with 5 business days to cure such breach to Employer's
satisfaction and, prior to termination, provide a written response to such
attempt to cure, including any reasons why such attempt was inadequate; (ii)
Employee's conviction of a crime involving a felony, fraud, embezzlement or the
like; habitual insobriety; use of a control-led substance; or misappropriation
of funds of Employer or the taking by Employee of any improper personal benefit;
(iii) Employee's continued failure (on two, or more occasions) to follow any
reasonable policy of Employer to which similarly situated Employees are subject,
after notice of such policy; (iv) upon Employer's reasonable determination that
Employee's continuation in his position may be expected to result in serious
harm or damage, or the material risk thereof, to the assets, business or worth
of Employer; or (v) the appropriation (or attempted appropriation) of a material
business opportunity of Employer.
"Person" means any individual, corporation {including any non-profit
corporation), general or limited partnership, limited liability company, joint
venture, estate, trust, association, organization, or governmental body.
"Post-Employment Period" means (i) the period beginning on the date on
which the Employment Period ends and ending on the three month anniversary of
such date; provided, however, that if the Employment Period ends For Good
Reason, then there shall be no Post-Employment Period.
ARTICLE 2.
Employment Terms and Duties
2.1 Term. Subject to the provisions of Article 6, the term of Employee's
employment under this Agreement will be three years, beginning on the date
hereof and ending on April 15, 2002 (the Term).
3
2.2 Duties. Employee will have such duties as are assigned or delegated to
Employee by the Board of Directors which Employee acknowledges shall include all
activities incident to Employee's position as Executive Vice President of
Employer. Employee will serve as Executive Vice President and Chairman of the
Employer and of Sonus Communication Holdings, Inc., a Delaware corporation
("Holdings"), during the term. Employee will devote his entire business time,
attention, skill, and energy exclusively to the business of Employer, will use
his best efforts to promote the success of Employer's business, and will
cooperate fully with the Board of Directors in the advancement of the best
interests of Employer. Nothing in this Section 2.3, however, will prevent
Employee from engaging in additional activities in connection with personal
investments, business and community affairs that are not inconsistent with
Employee's duties under this Agreement.
2.3 Service on Board of Directors. Employee shall, subject to earlier removal
by the shareholders, serve on the Board of Directors of Employer and Sonus
Communication Holdings, Inc. until the third anniversary of this Agreement,
without additional compensation except for reimbursement of reasonable expenses
associated with such service. Removal from the Board of Directors by
shareholders prior to the third anniversary of this agreement shall not give
rise to any claim or other liability of or against Employer under this Agreement
provided, however, that salary and benefits shall continue for the full term.
ARTICLE 3.
Compensation
(a) Base Salary. Beginning on April 15, 2000, Employee will be paid an
annual salary commensurate with that paid to similarly situated members of
senior management of Employer, as mutually agreed upon by Employer and Employee
prior to April 15, 2000; provided, however, that such salary shall be not less
than $84,000 per annum, and shall be paid in accordance with Employer's usual
compensation schedule and practices, but not less frequently than monthly,
during the Term. Prior to April 15, 2000, Employee shall not receive a salary or
other compensation hereunder, except as expressly provided herein. The Salary
will be reviewed by the Board of Directors from time to time, and may be
adjusted upward or downward in the sole discretion of the Board of Directors,
but in no event will the Salary be less than $84,000 per year.
(b) Employee Benefits. During the Employment Period, Employee will be
permitted to participate in such pension, health, profit sharing, savings and
retirement and other employee benefit plans, practices, policies and programs
applicable generally to similarly situated senior management employees of
Employer, if any ( collectively, the Employee Benefits); provided, however, that
until April 15, 2000, Employer shall not be required to pay any portion thereof
or make any contributions thereto with respect to Employees participation in
such plans and programs.
4
ARTICLE 4.
Facilities and Expenses
For the Employment Period, Employee shall be provided office and conference room
space, furniture, fixtures, miscellaneous office equipment (including phones,
faxes, computers, and copy machines). Employee shall be entitled to
reimbursement of reasonable expenses actually incurred by the Employee in
connection with Employee's pursuit of his duties under this Agreement, provided,
however, that Employee shall provide the Employer with all documentation thereof
reasonably requested by it.
ARTICLE 5.
Vacations and Holidays
Employee will be entitled to four (4) weeks paid vacation during each year
of the Term of this Agreement, in accordance with the vacation policies of
Employer in effect for its senior executive officers from time to time. Employee
will also be entitled to the paid holidays and other paid leave set forth in
Employer's policies Vacation days and holidays during any Fiscal Year that are
not used by Employee during such Fiscal Year may be carried forward for 3
subsequent Fiscal Years.
ARTICLE 6.
TERMINATION
6.1 Events of Termination. Except as otherwise provided in this Article 6,
the Employment Period, Employee's Compensation, and any and all other rights of
Employee under this Agreement or otherwise as an employee of Employer will
terminate:
(a) immediately upon the death of Employee;
(b) upon the Disability of Employee immediately upon notice from either
party to the other
(c) immediately upon a termination of the Employment Period by Employer,
For cause, or
(d) upon a termination of the Employment Period by Employee, upon not less
than thirty days prior notice from Employee to Employer .
6.2 Definition of Disability. For purposes of Section 6.1, Employee will
be deemed to have a "Disability" if, for physical or mental reasons, Employee is
unable to perform Employee's duties under this Agreement for one hundred twenty
(120) consecutive days, or one hundred eighty (180) days during any twelve (12)
month period, as determined in accordance with this Section 6.2. The Disability
of Employee will be determined by a medical doctor selected by written agreement
of Employer and Employee upon the request of either party by notice to the
other. If Employer and
5
Employee cannot agree on the selection of a medical doctor, each of them will
select a medical doctor and the two medical doctors will select a third medical
doctor who will determine whether Employee has a Disability. The determination
of the medical doctor selected under this Section 6.2 will be binding on both
parties. Employee must submit to a reasonable number of examinations by the
medical doctor making the determination of Disability under this Section 6.2,
and Employee hereby authorizes the disclosure and release to Employer of such
determination and all supporting medical records. If Employee is not legally
competent, Employee's legal guardian or duly authorized attorney-in-fact will
act in Employee's stead, under this Section 6.2, for the purposes of submitting
Employee to the examinations, and providing authorization of disclosure,
required under this Section 6.2.
6.3 Definitions of For Good Reason. For purposes of this Agreement, the
phrase "For Good Reason" means Employer's material and continuing
breach of this Agreement.
6.4 Benefits. Except as otherwise provided in this Agreement, Employee's
accrual of, or participation in plans providing for, the Benefits
will cease at the effective date of the termination of the
Employment Period, and Employee will be entitled to accrued benefits
pursuant to such plans only as provided in such plans. Employee will
receive, as his termination pay, any payment or other compensation
for any vacation, holiday, sick leave, or other leave unused on the
date the notice of termination is given under this Agreement.
ARTICLE 7.
Agreements of Employee
In consideration of the compensation and benefits to be paid or provided
to Employee by Employer under this Agreement, Employee covenants as follows:
7.1 Confidentiality
(a) Subject to Section 7.1 (b), Employee shall not, at any time, divulge,
disseminate, disclose or communicate to any Person any Confidential Information,
which information Employee shall hold during such period in trust in a fiduciary
capacity for the sole benefit of Employer, its Affiliates, and their successors
and assigns.
(b) None of the foregoing obligations and restrictions applies to any part
of the Confidential Information that (i) was or became generally available to
the public other than as a result of a disclosure by Employee; (ii) is
information that has been explicitly approved for public release by Employer or
an Affiliate thereof; (iii) is disclosed pursuant to a valid and enforceable
subpoena of a court or governmental agency of competent jurisdiction, provided
that Employee shall first have given Employer reasonable opportunity to seek a
confidentiality order or other confidential treatment of such Confidential
Information; (iv) is disclosed to third parties by Employer without restrictions
6
as to confidentiality; or (v) is received from a third party whose disclosure
would not violate any confidentiality obligation, direct or indirect, express or
implied.
(c) Employee will not remove from Employer's premises (except to the
extent such removal is for purposes of the performance of Employee's duties at
home or while traveling, or except as otherwise specifically authorized by
Employer) any document, record, notebook, plan, model, component, device, or
computer software or code, whether embodied in a disk or in any other form
(collectively, the "Proprietary Items").
7.2 Disputes or Controversies. Employee and Employer will use their best
efforts to cause all pleadings, documents, testimony, and records relating to
any such adjudication to be maintained in secrecy and to make the same available
for inspection by Employer, Employee, and their respective attorneys and
experts, who will agree, in advance and in writing, to receive and maintain all
such information in secrecy.
ARTICLE 8.
Restrictive Covenants
8.1 Covenants of Employee. In consideration of the compensation and
benefits to be paid or provided to Employee by Employer, Employee covenants that
he will not, directly or indirectly:
(a) during the Employment Period, except in the course of his employment
hereunder, and during the Post-Employment Period, engage or invest in, own,
manage, operate, finance, control, or participate in the ownership, management,
operation, financing, or control of, be employed by, associated with, or in any
manner connected with, lend Employee's name or any similar name to, lend
Employee's credit to or render services or advice to, any business whose
products or activities compete in whole or in part with the products or
activities of Employer:
(i) anywhere within the United States
(ii) anywhere within 50 miles of any physical location owned, leased
or operated by Employer;
provided, however, that (A) Employee may purchase or otherwise acquire up to
(but not more than) 4.99 percent of any class of securities of any enterprise
(but without otherwise participating in the activities of such enterprise) if
such securities are listed on any national or regional securities exchange or
have been registered under Section 12(g) of the Securities Exchange Act of 1934,
and (B) this provision shall not require Employee to sell, transfer, assign or
otherwise divest any interest owned by him prior to the date of this Agreement;
(b) whether for Employee's own account pr for the account of any other
Person, at any time during the Employment Period and the Post-Employment Period,
solicit business of the same or similar type being carried on by Employer, from
any
7
Person known by Employee to be a customer of Employer, whether or not Employee
had personal contact with such person during and by reason of Employee's
employment with Employer;
(c) whether for Employee's own account or the account of any other Person
(i) at any time during the Employment Period and the Post-Employment Period,
solicit, employ, or otherwise engage as an employee, independent contractor, or
otherwise, any Person who is an employee of Employer or in any mariner induce or
attempt to induce any employee of Employer to terminate his employment with
Employer; or (ii) at any time during the Employment Period and during the
Post-Employment Period, interfere with Employer's relationship with any Person,
including any Person who at any time during the Employment Period was an
employee, contractor, supplier, or customer of Employer; or
(d) at any time during the Employment Period and during the
Post-Employment Period, disparage Employer or any of its shareholders,
directors, officers, employees, or agents
8.3 Return of Materials. When Employee ceases to be an employee of
Employer, Employee promptly shall deliver to Employer all documents, memoranda,
records, notes, and other materials in his possession, whether prepared by him
or others, and all copies thereof, that contain any Confidential Information,
and Employee shall have no further rights therein.
ARTICLE 9.
Miscellaneous
9.1 Waiver. The rights and remedies of the parties to this Agreement are
cumulative and not alternative. Neither the failure nor any delay by either
party in exercising any right, power, or privilege under this Agreement will
operate as a waiver of such right, power, or privilege, and no single or partial
exercise of any such right, power, or privilege will preclude any other or
further exercise of such right, power, or privilege or the exercise of any other
right, power, or privilege. To the maximum extent permitted by applicable law,
(a) no claim or right arising out of this Agreement can be discharged by one
party, in whole or in part, by a waiver or renunciation of the claim or right
unless in writing signed by the other party; (b) no waiver that may be given by
a party will be applicable except in the specific instance for which it is
given; and (c) no notice to or demand on one party will be deemed to be a waiver
of any obligation of such party or of the right of the party giving such notice
or demand to take further action without notice or demand as provided in this
Agreement.
9.2 Binding Effect; Delegation of Duties Prohibited. This Agreement shall
inure to the benefit of, and shall be binding upon, the parties hereto and their
respective successors, assigns, heirs, and legal representatives, provided,
however, that this Agreement may be assigned by Employer only with the prior
written consent of
8
Employee, which consent shall not be unreasonably withheld. The duties and
covenants of Employee under this Agreement, being personal, may not be
delegated.
9.3 Headings. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
Interpretation of this Agreement.
9.4 Notices. All notices, requests, demands, claims, and other
communications hereunder shall be in writing and shall be given by registered or
certified mail, return receipt requested, postage prepaid, by telecopier or by
national overnight delivery service, and addressed to the intended recipient as
set forth below.
IF TO EMPLOYEE:
Xxxxxxx X. Xxxx
0000 Xxxxxxx Xxxx.
Xxxxxxxxxxx, XX 00000
IF TO EMPLOYER: WITH A COPY TO:
Sonus Communications, Inc. Xxxxx X. Xxxxxx, III, Esquire
C/o Chief Executive Officer McGuire, Woods, Battle & Xxxxxx LLP
1600 Xxxxxx Blvd., Ste. 0000 Xxxxx Xxxxx Xxxx Xxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxx, Xxxxxxxx 00000-0000
Any notice given in the manner aforesaid shall be deemed to have been served,
and shall be effective for all purposes hereof (a) if sent by registered or
certified mail, on the earlier of the second day following the day on which it
is posted or the date of its receipt by the party to be notified, (b) if sent by
telecopier, the date actually received as evidenced by a written receipt of
transmission and (c) if sent by overnight delivery service, the day after such
notice has been delivered by the party to said service. Any Party may change the
address to which notices, requests, demands, claims and other communications
hereunder are to be delivered by giving the other Party notice In the manner
herein set forth.
9.5 Entire Agreement; Amendments. This Agreement contains the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior agreements and understandings, oral or written, between the
parties hereto with respect to the subject matter hereof. This Agreement may not
be amended orally, but only by an agreement in writing signed by the parties
hereto.
9.6 Construction. Any reference to any federal, state, local, or foreign
statute or law shall be deemed also to refer to all rules and !regulations
promulgated thereunder, unless the context requires otherwise.
9
9.7 Severability. If any provision of this Agreement is held invalid or
unenforceable by any court of competent jurisdiction, the other provisions of
this Agreement will remain in full force and effect. Any provision of this
Agreement held invalid or unenforceable only in part or degree will remain in
full force and effect to the extent not held invalid or unenforceable.
9.8 Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to constitute
one and the same agreement.
9.9 Governing Law; Venue. This Agreement shall be governed by and
construed in accordance with the domestic laws of the Commonwealth of Virginia
without giving effect to any choice or conflict of law provision or rule
(whether of the Commonwealth of Virginia or any other jurisdiction) that would
cause the application of the laws of any jurisdiction other than the
Commonwealth of Virginia. To the extent not resolved by binding arbitration
pursuant to Section 9.13 below, each of the parties submits to the jurisdiction
of any state or federal court sitting in Alexandria, Virginia or Arlington,
Virginia, in any action or proceeding arising out of or relating to this
Agreement and agrees that all claims in respect of the action or proceeding
shall be heard and determined in any such court. Each party also agrees not to
bring any action or proceeding arising out of or relating to this Agreement in
any other court. Each of the parties waives any defense of inconvenient forum to
the maintenance of any action or proceeding so brought and waives any bond,
surety, or other security that might be required of any other party with respect
thereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed and delivered as of the day and date first above written.
EMPLOYER:
SONUS COMMUNICATIONS, INC.
By: /s/ W. Xxxx Xxxxxx
-------------------------
Name: W. Xxxx Xxxxxx
-----------------------
Title: President
EMPLOYEE:
/s/ Xxxxxxx X. Xxxx
----------------------------
Xxxxxxx X. Xxxx
