USOL HOLDINGS, INC.
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement (the "Agreement") is made and entered into
this 15th day of November, 2001, by and between USOL HOLDINGS, INC., an Oregon
corporation (the "Company"), its successors and assigns, and XXXX X. XXXXX
("Employee").
A. The Company is engaged in the business of providing integrated
telecommunications and entertainment services to residents of multi-family
apartment and condominium complexes including but not limited to cable
television, enhanced local and long-distance telephone services, and high-speed
Internet access. These activities, together with activities that the Company
enters into during Employee's employment, are collectively referred to in this
Agreement as the "Business of the Company."
B. Employee has been serving as the Company's Senior Vice President and Chief
Operating Officer.
C. The Company wishes to continue to employ Employee and Employee desires to
accept such continued employment on the terms and conditions set forth in this
Agreement.
D. Employee possesses and will continue to possess Confidential Information (as
defined below) as a result of his ongoing relationship with the Company.
Following the execution of this Agreement by Employee, the Company agrees to
provide Employee with continued access to new Confidential Information. In
exchange for the continued provision of such Confidential Information, Employee
agrees not to reveal or disclose Confidential Information and to enter into
certain restrictive covenants as stated in this Agreement.
NOW, THEREFORE, for and in consideration of the promises and mutual
agreements set forth in this Agreement, the parties hereby agree as follows:
1. DUTIES OF EMPLOYMENT
While subject to change as conditions warrant, Employee shall be
employed as the Senior Vice President and Chief Operating Officer and of the
Company with such duties and performance requirements as are typically performed
by individuals with similar job titles in similarly sized companies and such
other duties as may be assigned or delegated to or requested of him from time to
time by the Chief Executive Officer or the Board of Directors. Employee shall
devote a majority of his time, attention, skill and efforts to the performance
of his duties for the Company, which shall be at a level that is reasonably
comparable to the generally prevailing standards for individuals with similar
job titles in similarly sized companies. Employee agrees to follow and abide by
all of the lawful policies, rules, and procedures of the Company in effect
during the course of his employment.
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2. LOYALTY, NONINTERFERENCE, NONSOLICITATION & NONCOMPETITION
(a) Employee acknowledges his fiduciary duty of loyalty to the Company, and
agrees not to engage in any activity during the term of his employment by the
Company which will or could materially harm the business, business interests or
reputation of the Company. Without limiting the foregoing, Employee will not
directly or indirectly engage in competition with the Company at any time during
his employment by the Company and will not, on his own behalf, or as another's
agent, employee, partner, or otherwise, engage in any duties similar to those
required by Employee's position with the Company, other than as an employee of
the Company pursuant to this Agreement.
(b) Employee acknowledges that the Company has, over a period of time, developed
and will continue, over a period of time, to develop, significant relationships
and goodwill between itself, and its clients, customers, vendors, suppliers and
candidates, by providing superior service to its clients, customers, vendors,
suppliers and candidates. Employee recognizes that the relationships that he
develops with these clients, customers, vendors, suppliers and candidates during
the period of his employment by the Company constitutes part of the valuable
goodwill of the Company. Employee agrees that he will not interfere with the
business relationships or goodwill of the Company.
(c) Employee also recognizes that because there is a limited market for the type
of products and services performed by the Company, the Company faces a
legitimate and significant potential for injury from competition by former
employees competing or working for competitors of the Company. In order to
facilitate the enforcement of these obligations, including but not limited to
Employee's obligation to respect Confidential Information, Employee agrees that
upon his separation from employment with the Company for any reason, voluntarily
or involuntarily, for a period of 6 months following the date of separation from
employment, Employee will not, either directly or indirectly, on his own account
or as an agent, stockholder, owner, employer, employee or otherwise:
(i) solicit any business from any Customer of the Company for purposes of
providing products or services similar to those offered by the Company. For
purposes of this Agreement, the term "Customer" includes those persons or
entities (i) that are customers of the Company at the time of Employee's
separation from employment; or (ii) are past or potential customers of the
Company that Employee may have contacted or otherwise have knowledge of during
his employment;
(ii) compete with the Company, directly or indirectly, by engaging in,
becoming employed by, becoming a shareholder, consultant, partner, lender,
principal, agent or becoming an equity owner of more than 5% of an entity's
outstanding ownership interest by vote or by value, or entering into any other
relationship whatsoever with an entity that competes with the Company or an
entity that engages in activities that are similar to the Business of the
Company in any geographic
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area in which the Company is operating at the time of Employee's separation from
employment;
(iii) contact or approach either directly or indirectly for his own
individual purposes or those of another, any employee of the Company for the
purpose of attempting to or actually soliciting or hiring that employee on his
own account, or on account of another.
3. CONFIDENTIAL INFORMATION
(a) During and after his employment by the Company, Employee agrees that he will
hold all Confidential Information (as defined herein) in strictest confidence
and will not, directly or indirectly, use for his own benefit or disclose any
Confidential Information unless such disclosure is (i) to an employee of the
Company who has a need to know the information and is under a duty of
confidentiality; (ii) authorized in writing by an officer of the Company; or
(iii) required by law.
(b) Employee agrees that he will not knowingly cause any Confidential
Information, including without limitation any software or technical data
received from the Company, to be downloaded, shipped, transferred, exported or
re-exported, in violation of United States export law.
(c) If Employee separates from employment with the Company for any reason,
Employee agrees that he will promptly (i) return all property, records, files,
documents, materials and copies relating to the business of the Company which
came into the possession of Employee during his employment, (ii) after returning
the original data to the Company in useable format, Employee will destroy all
such information stored on computers or disk storage owned or controlled by
Employee; and (iii) within 30 days of receipt of the Company's written request,
provide the Company with a sworn affidavit verifying that all such materials
have been returned to the Company or destroyed.
(d) For purposes of this Agreement, the term "Confidential Information" includes
information disclosed to the Employee or known to the Employee as a consequence
of his employment with the Company (including information developed by the
Employee) concerning the Company's trade secrets, processes, data, experimental
or developmental work, and inventions (whether or not reduced to writing and
whether or not patentable or protected by copyright) including, without
limitation, the following:
(i) information concerning the Company's proprietary software, including
but not limited to documentation, source code, object code, algorithms, logic,
design, procedures, databases, structure and organization of any proprietary
software and documentation, all prior versions of any proprietary software and
documentation, new versions, enhancements and improvements to any proprietary
software and documentation;
(ii) proprietary software products in use, planned or under development,
including operating system adaptations or enhancements, language compilers,
interpreters and translators, system design and evaluation tools, and
application programs;
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(iii) research currently in use, planned or under development;
(iv) information relating to the Company's employees, their compensation,
benefits, skills, performance, and the Company's staffing levels and objectives;
(v) actual and anticipated relationships between the Company and other
companies; sales levels, profit levels, pricing, budget, and other unpublished
financial data; marketing techniques, strategies, business projections, business
plans and strategies, sales techniques, strategies and methods of conducting
business;
(vi) confidential or proprietary information from third parties, like
customers or vendors, subject to a duty on the Company's part to maintain
confidentiality and use only for certain limited purposes.
(vii) The term "Confidential Information" does not include any information
that Employee was aware of prior to his employment by the Company, information
that is a matter of public record, information contained in any document filed
or submitted to any governmental entity subject to public disclosure, any
information that is common knowledge in any industry in which the Company does
business, or any information that is known to the Company's competitors.
4. INVENTIONS OR DISCOVERIES
(a) Employee acknowledges that if, during his employment, he creates or makes,
in whole or in part, any inventions, discoveries, trade secrets, improvements,
computer programs, methods, processes, databases, or other business knowledge
that is related to the current or prospective business or activities of the
Company, whether or not using any assets of the Company (collectively referred
to as "Inventions"), such Inventions shall belong to the Company.
(b) Employee agrees that any and all Inventions, including without limitation
all rights in plans, models, prototypes, and databases created, authored, or
developed by Employee, either individually or jointly with others, during the
term of Employee's employment, where such Inventions were created pursuant to
the performance of Employee's duties or relate to the subject matter of
Employee's employment are the sole and exclusive property of the Company and its
assigns, and that the Company and its assigns shall be the sole owner of all
patents, copyrights, registrations and other rights in connection therewith.
Employee irrevocably assigns to the Company, all his right, title, and interest
in and to any and all Inventions and related intellectual property rights.
Employee's obligations apply without regard to whether an idea for an Invention
or the solution to a problem occurs to him on the job or elsewhere. The Company
is not required to distribute or market any Invention, or to designate the
Employee as an author of any Invention (except as required by law), or other
work of authorship if such Invention is distributed publicly.
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(c) During Employee's employment with the Company, Employee will create and
retain current written records of all Inventions created, authored, or developed
by Employee, either individually or jointly with others, during the term of
Employee's employment, where such Inventions are created pursuant to the
performance of Employee's duties or relate to the subject matter of Employee's
employment in the form of notes, sketches, written descriptions and drawings,
where applicable, recognizing that all such records are and will remain the sole
property of the Company at all times. If the Company has no interest in
perfecting its rights in the Invention, the Company may, at its sole discretion,
if requested, release Employee in writing from his obligations relating
specifically to that Invention.
5. WORKS OF AUTHORSHIP
Employee agrees that the Company will be the copyright owner of all
copyrightable works of every kind and description, including but not limited to
designs, software, firmware, computer programs, database, internal reports,
compilations of data, and publications both printed and electronic (collectively
referred to as "Works of Authorship") created, authored, or developed by
Employee, either individually or jointly with others, during the term of
Employee's employment, where such Works of Authorship are created pursuant to
the performance of Employee's duties or relate to the subject matter of
Employee's employment. Employee agrees that all Works of Authorship created at
the direction of or for the Company, or which relate in any way to the business
of the Company, are made by the Employee, solely or jointly with others, within
the scope of his employment and are protectable by copyright are "works made for
hire," as that term is defined in the United States Copyright Act. If any Works
of Authorship do not fall within the statutory definition of "works made for
hire," Employee irrevocably assigns all of his right, title and interest in and
to the copyright, and related intellectual property rights in such Works of
Authorship.
6. POST EMPLOYMENT ACTIVITIES
Employee agrees that, at the time of leaving the employ of the Company, Employee
will deliver to the Company (and will not keep in his possession, recreate or
deliver to anyone else) any and all Inventions, devices, records, data, notes,
reports, proposals, lists, correspondence, specifications, drawings, blueprints,
sketches, materials, equipment and other documents or property or copies thereof
developed by Employee pursuant to his employment with the Company or otherwise
belonging to the Company, its successors and assigns. Upon the Company's
request, Employee agrees to certify the same in writing to the Company.
7. COOPERATION WITH COMPANY
Employee will promptly execute, verify and deliver all papers and documents
necessary to vest in the Company all right, title and interest in and to the
Inventions and Works of Authorship.
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At the Company's request and expense, Employee will assist the Company in
applying for, perfecting, evidencing, maintaining, protecting and enforcing any
form of intellectual property protection accorded to such Inventions and Works
of Authorship including, without limitation, giving evidence and testimony in
support of the Company. Employee will assign to the Company the Inventions and
Works of Authorship and any patents, copyrights and other registrations granted
thereon. At the Company's expense, Employee agrees to assist the Company in
every way proper to enforce all of the Company's rights in and to Inventions,
Works of Authorship and Confidential Information, both during employment and
thereafter. The Company agrees to compensate Employee at a reasonable rate (but
no less than Employee's total compensation earned on an average, calculated on
an hourly basis, based on a 40-hour week, at the time of his termination from
employment) after separation from employment for time actually spent by Employee
at the Company's request on such assistance.
8. VIOLATION
Employee agrees that a material violation of his obligations under this
Agreement, either during employment or after separation from employment, will
cause irreparable harm to the Company. Employee agrees that the Company has the
right to enforce any of the obligations under this Agreement through legal
and/or equitable remedies, including but not limited to obtaining an injunction,
without bond. The assertion or existence of any material breach of this
Agreement, or other obligation by the Company to Employee, will not constitute a
defense to the enforcement of Employee's obligations under this Agreement.
9. Compensation: During the Term of this Agreement (as defined herein), the
Company shall pay Employee the following compensation:
(a) Base Salary. Employee shall receive an initial base salary (the "Base
Salary") of $150,000.00 per year, payable in accordance with the Company's
ordinary payroll policies and procedures. Effective January 1, 2002, Employee's
Base Salary shall increase to $175,000.00 per year, payable in accordance with
the Company's ordinary payroll policies and procedures. The Base Salary may be
reviewed periodically thereafter by the Company and may be increased in the sole
discretion of the Company. The Company shall withhold from the Base Salary the
prescribed federal income tax, social security and other items as required by
law, for other items consistent with the Company's policy with respect to health
insurance and other benefit plans, and as otherwise authorized by Employee.
(b) Business Expenses. The Company shall directly reimburse Employee for any and
all, reasonable expenses incurred by Employee in connection with the performance
of Employee's duties pursuant to this Agreement and in compliance with the
Company's policies and procedures. Employee shall provide the Company with a
written accounting of such expenses on a form acceptable to the Company and
satisfying any applicable federal income tax reporting or record keeping
requirements, within 30 days following the date upon which the expense was
incurred.
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Any reimbursement requests which do not comply fully with this paragraph may be
rejected by the Company without recourse by Employee.
(c) Employee Benefits. Employee, if eligible, shall be entitled to participate
in all available benefit programs that may be offered to other similarly
situated employees ("Employee Benefits"). Such benefit programs are subject to
change from time to time. The Company agrees to pay the entire premium for any
health care coverage for both Employee and his dependents, if any.
(d) Bonus. Employee may receive from the Company, in addition to the Base
Salary, such bonus payments as the Board of Directors of the Company may specify
in its sole discretion.
(e) Vacation. Employee shall be entitled to 4 weeks of paid vacation per year.
Each year will be calculated using Employee's anniversary date of hire. Such
vacation shall accrue in accordance with Company policy. Unused, accrued
vacation may not be carried forward into subsequent years and, except as
otherwise provided herein, no payment for accrued vacation will be made upon
termination of employment.
(f) Stock Options. Effective upon approval by the Company's Board of Directors,
the Company shall grant to Employee, incentive options, pursuant to the terms of
the Company's stock option plan and standard incentive stock option award
agreement, for the purchase of 200,000 shares of the Company's common stock at
an exercise price equal to the fair market value of the stock on the date of
grant. Options to purchase 50,000 of the shares shall be fully vested upon the
date of grant, with the remaining options vesting in three equal annual
installments of 50,000 shares each on the first, second and third anniversary
date of the grant.
(g) Relocation Expenses. If the Company requires Employee to relocate outside of
the Austin, Texas metropolitan area, the Company agrees to reimburse Employee
for a limited amount of properly documented and reasonable relocation expenses.
The amount of expenses to be reimbursed must be pre-approved by the Board of
Directors.
10. TERM AND TERMINATION
(a) Unless otherwise terminated pursuant to the terms of Section 10(b) of this
Agreement, this Agreement shall commence on November 15, 2001 and shall expire
on November 14, 2003 (the "Term"). Notwithstanding the foregoing, the
obligations of Employee under Sections 2 through 8 of this Agreement shall
survive the expiration of the Term.
(b) Employee's employment may be terminated as follows:
(i) The Company may terminate Employee's employment at any time for
"Cause." For purposes of this Agreement, "Cause" to terminate Employee's
employment may consist of any of
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the following: (a) Employee's personal misconduct of such a nature as to render
his continued employment likely to be detrimental to the Company; (b) Employee's
failure or refusal to satisfactorily perform his duties and responsibilities;
(c) dishonesty that relates to the performance of Employee's duties for the
Company; (d) breach of fiduciary duty to the Company; (e) conviction of a felony
or crime of moral turpitude; (f) violence or threats of violence to Company
personnel or on Company premises; (g) misappropriation of Company funds or
property; (h) Employee's death; or (i) unauthorized use or disclosure of the
Company's Confidential Information or material violation of the covenants and
agreements contained in this Agreement. If the Company terminates Employee's
employment for Cause, Employee shall be entitled to receive any unpaid Base
Salary, bonus and Employee Benefits earned pro rata to the effective date of
termination but shall not be entitled to receive any amounts otherwise required
to be paid by the Company on a date following such termination under any bonus,
incentive or other plan adopted by the Company.
(ii) The Company may terminate Employee's employment at any time without
Cause by providing the employee with 15 days written notice of its intent to
terminate Employee without Cause. The Company may elect to relieve Employee of
Employee's duties under this Agreement during the 15 day period following notice
of termination. If the Company terminates Employee's employment without Cause,
Employee shall be entitled to receive as full and final satisfaction of any and
all claims under this Agreement any unpaid Base Salary, bonus and Employee
Benefits earned pro rata to the effective date of termination. In addition, if
Employee agrees to execute a release agreement releasing the Company from any
and all claims, Employee shall be entitled to receive (a) continuation of his
Base Salary for a period of six (6) months; (b) reimbursement of up to six (6)
months COBRA premiums should Employee elect continuation of coverage under
COBRA; and (c) immediate vesting of any unvested options that would have vested
if Employee had continued to be employed by the Company through the earlier date
of: (x) six (6) months after Employee's termination, or (y) the annual
anniversary date of Employee's option grant occurring after Employee's
termination (the "Severance Package"). Receipt of the Severance Package is
contingent upon Employee's compliance with his continuing obligations to the
Company under Sections 2, 3, 6, 7, and 8 of this Agreement.
(iii) If Employee becomes physically or mentally disabled, whether totally
or partially, as evidenced by the written statement of a competent physician
licensed to practice medicine in the United States, so that the Employee is
unable to perform the essential functions of his job with reasonable
accommodation for a period of twelve consecutive weeks, or (ii) for shorter
periods aggregating twelve weeks during any period of twelve consecutive months,
the Company may at any time after the last day of the twelve consecutive weeks
of disability, or the day on which the shorter periods of disability equal an
aggregate of twelve weeks within a period of twelve consecutive months,
terminate Employee's employment hereunder. If such right is exercised, the
Company's obligation to Employee shall be the Severance Package as set forth in
Section 10(b)(ii) hereinabove. In the event Employee qualifies for any short
term or long term disability benefits, Employee recognizes that the Company
shall be entitled to an offset for any such disability payments
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Employee receives by a like dollar for dollar reduction in the payments under
the Severance Package.
(iv) If Employee is terminated without Cause or resigns for Good Reason (as
defined herein) within one year following a Change of Control (as defined
herein), and Employee agrees to execute a release agreement releasing the
Company from any and all claims, Employee shall be entitled to receive (a)
continuation of his Base Salary for a period of twelve (12) months; (b)
reimbursement of up to twelve (12) months COBRA premiums should Employee elect
continuation of coverage under COBRA; and (c) immediate vesting of any unvested
options (the "Enhanced Severance Package"). Receipt of the Enhanced Severance
Package is contingent upon Employee's compliance with his continuing obligations
to the Company under Sections 2, 3, 6, 7 and 8 of this Agreement. Under no
circumstances shall Employee be entitled to received both the Severance Package
and the Enhanced Severance Package. For purposes of this Agreement, a "Change of
Control" shall be deemed to exist when any of the following occurs: (1) a merger
or consolidation in which the Company is not the surviving entity; (2) a sale,
transfer or other disposition of all or substantially all of the Company's
assets; (3) a reverse merger in which the Company is the surviving entity but in
which the Company's outstanding voting securities are transferred in whole or in
part to a person or persons different from the persons holding those securities
immediately prior to the merger; or (4) a liquidation or dissolution of the
Company. A transaction shall not constitute a Change of Control if its sole
purpose is to change the state of the Company's incorporation or to create a
holding company that will be owned in substantially the same proportions by the
persons or entities who held the Company's securities immediately before such
transaction. For purposes of this Agreement, "Good Reason" shall be limited to:
(1) a breach by the Company of a material term of this Agreement, which breach
remains uncured for a period of 30 days after written notice of such breach from
the Employee to the Company (such notice to specify the specific nature of the
claimed breach and the manner in which the Employee requires such breach to be
cured); or (2) the Company's failure to rectify within 30 days after written
notice of Employee's intent to resign pursuant to this provision, a material and
detrimental reduction in Employee's responsibilities and authority that occurs
without a legitimate good faith business reason.
(v) Employee shall be entitled to terminate his employment at any time and
for any reason by providing the Company with a written notice of resignation at
least 4 weeks prior to his intended resignation date. If Employee resigns
pursuant to this provision by giving the Company at least 4 weeks written notice
of his intent to resign, Employee shall be entitled to receive as full and final
satisfaction of any and all claims under this Agreement (a) any unpaid Base
Salary, bonus and Employee Benefits earned pro rata to the effective date of
termination and (b) payment for any accrued, unused vacation benefits as of the
effective date of termination.
11. Successors and Assigns: This Agreement may be assigned by the Company but
not by Employee.
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12. ARBITRATION: With the exception of claims by the Company or by Employee for
injunctive and/or other equitable relief, Employee and the Company mutually
consent to the resolution by arbitration of any and all legal or equitable
claims or disputes between them, including but not limited to, claims arising
out of or in connection with Employee's employment, separation from employment,
or this Agreement. The Company and Employee mutually agree that such arbitration
shall be in accordance with the then-current Employment Dispute Resolution Rules
of the American Arbitration Association (the "AAA") before an arbitrator who is
licensed to practice law. One arbitrator shall be used and shall be chosen by
mutual agreement of the parties. The arbitrator shall issue a written decision
and award stating the reasons therefor. The decision and award shall be final
and binding on both parties, their heirs, executors, administrators, successors,
and assigns. The arbitration filing fee and the costs and expenses of the
arbitrator shall be borne evenly by the parties. It is the intention of the
parties that this Agreement shall be enforceable under the Federal Arbitration
Act, the Texas General Arbitration Act, and at common law. The prevailing party
in arbitration may, at the arbitrator's sole discretion, be awarded attorney's
fees, the arbitration filing fee and the costs and expenses of the arbitrator.
13. Rules of Construction: The following provisions shall govern the
interpretation and enforcement of this Agreement:
(a) Entire Agreement: This Agreement contains the entire understanding between
the parties hereto concerning the subject matter contained herein and supersedes
any prior written or oral agreements between the parties. This Agreement does
not supersede the Company's rights under any agreement between Employee and the
Company that (i) protects the Company's proprietary information or intellectual
property, or (ii) prohibits Employee from competing with the Company or
soliciting the Company's customers, suppliers or employees; rather all such
rights of the Company under any such agreements shall be in addition to the
rights granted herein.
(b) Severability: If any provision of this Agreement is held by final judgment
of a court of competent jurisdiction to be invalid, illegal or unenforceable,
such invalid, illegal or unenforceable provision shall be severed from the
remainder of this Agreement, and the remainder of this Agreement shall be
enforced. In addition, the invalid, illegal or unenforceable provision shall be
deemed to be automatically modified, and, as so modified, to be included in this
Agreement, such modification being made to the minimum extent necessary to
render the provision valid, legal and enforceable. Notwithstanding the
foregoing, however, if the severed or modified provision concerns all or a
portion of the essential consideration to be delivered under this Agreement by
one party to the other, the remaining provisions of this Agreement shall also be
modified to the extent necessary to equitably adjust the parties respective
rights and obligations hereunder.
(c) Waiver: Failure of either party to enforce any provision of this Agreement
shall not constitute a waiver of that particular provision, or of any other
provisions, of this Agreement.
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(d) Choice of Law/Venue: The laws of Texas will govern the validity,
interpretation and effect of this Agreement and any other dispute relating to,
or arising out of this Agreement. This Agreement is performable in Xxxxxx
County, Texas.
(e) Counterparts: This Agreement may be executed in multiple counterparts, each
of which shall be deemed an original for all purposes.
14. notices: Any and all written notices required to be delivered under the
terms of this Agreement shall be forwarded by personal delivery, facsimile or
certified U.S. mail. Notices shall be deemed to be communicated and effective on
the day of receipt. Such notices shall be addressed to each party as follows:
If to Employee, to: If to the Company, to:
Xxxx X. Xxxxx USOL Holdings, Inc.
00000 Xxxxxx Xxxxxxxxx 00000 Xxxxxx Xxxxxxxxx
Xxxxxx, Xxxxx 00000 Xxxxxx, Xxxxx 00000
Attn: Board of Directors
Any party may change its or his address for the purpose of receiving notices and
other communications as provided in this Agreement by a written notice given in
the manner described above to the other parties.
EXECUTED on this __ day of November, 2001.
EMPLOYEE: THE COMPANY
Xxxx X. Xxxxx USOL Holdings, Inc.
An Oregon Corporation
By:
----------------------------- ---------------------------------
Xxxx X. Xxxxx Name:
-------------------------------
Title:
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