EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit 10(i)
THIS
AGREEMENT dated as of August 9, 2004 is made between STRATOS GLOBAL CORPORATION, a company
incorporated under the laws of Canada and having its head office at Xxxxxx Road, St. John’s,
Newfoundland (the “Company”) and Xxxxxxx Xxxxxx (the “Executive”).
RECITALS
(a) | On or about July 23, 2004, the Executive accepted the position of Senior Vice President and Chief Legal Officer on terms set out in a term sheet of that date. | ||
(b) | It was agreed between the Executive and the Company that they would enter into an employment agreement to incorporate the terms set out in the term sheet and address other issues customarily found in Executive Employment Agreements. |
NOW THEREFORE for good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties agree as follows:
ARTICLE 1: TERM
1.1 Employment
1.1 Employment
The Company shall employ the Executive and the Executive shall perform services on
behalf of the Company as its employee as provided herein during the Period of Active
Employment.
1.2 Period of Active Employment
In this Employment Agreement, “Period of Active Employment” shall mean the period
beginning on August 9, 2004 and terminating on the date on which the first of the following occurs:
(i) | the termination of the Executive’s employment by the Company for just cause as provided in Article 4.1 hereof; |
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(ii) | the termination of the Executive’s employment by his resignation pursuant to Article 4.2 hereof; | ||
(iii) | the termination of the Executive’s employment without cause pursuant to Article 4.3 hereof; | ||
(iv) | the termination of the Executive’s employment by reason of a disability of the Executive pursuant to Article 4.4 hereof; or | ||
(v) | the death of the Executive (see Article 4.5). |
ARTICLE 2: POSITION
2.1 Capacity and Services
The Company shall employ the Executive as its Senior Vice President and Chief Legal Officer.
As such, the Executive shall perform duties customarily performed by a Senior Vice President and
Chief Legal Officer of a corporation engaged in a business similar to that of the Company. The
Executive shall perform these duties in accordance with the by-laws of the Company, the
instructions of the President and CEO and Company Policy.
2.2 Full time and Attention
The Executive shall devote substantially all of his working time, attention and energies to
the business and affairs of the Company. The Executive agrees not to be employed or engaged in any
capacity in promoting, or undertaking or carrying on any other business without the prior consent
of the Board of Directors of the Company (“the Board”). The Executive may sit on the Board of
Directors of unrelated companies with the consent of the Board which will not unreasonably be
withheld, as long as such positions do not place the Executive in a conflict of interest with the
business and affairs of the Company or interfere with the carrying out of his duties and
responsibilities for the Company. Nothing herein limits the Executive from engaging in civic,
political, or charitable activities, so long as such activities do not unreasonably interfere with
his services for the Company.
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ARTICLE 3: COMPENSATION AND BENEFITS
3.1 Compensation
The Executive shall receive the remuneration and benefits set out in Schedule “A”
attached hereto, which schedule forms part of this Employment Agreement. The Executive will not be
entitled to any additional remuneration for being a director of the Company or any of its
subsidiaries.
3.2 Changes to Compensation
The Company will review the Executive’s remuneration and benefits annually in light of
the Executive’s performance and market conditions.
ARTICLE 4: TERMINATION
4.1 Termination by the Company for Just Cause |
The Company may immediately terminate the Executive’s employment under this Employment
Agreement for just cause by providing written notice to the Executive. If the Company terminates
the Executive’s employment for just cause, the Company shall not be obligated to make any further
payments under this Employment Agreement except for amounts due to the Executive at the time of
termination. In this circumstance, all unvested options are automatically cancelled.
For these purposes, “just cause’ shall mean Executive’s (a) conviction of a felony or of a
crime involving fraudulent conduct, (b) gross misconduct or gross insubordination, (c) repeated and
wilful refusal or failure to perform the duties of his position, or (d) wilful breach of any
published policy of the Company or of this Employment Agreement; provided, however, that, with
respect to subparagraphs (b), (c) and (d) the Company must first send to the Executive written
notice of the specific conduct that the Company contends is the basis for a just cause termination
and of the specific subparagraph on which it relies, and the Company must provide the Executive at
least thirty (30) days in which to cure such alleged grounds, if it is curable.
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The Executive will have 60 days from the date of termination specified in the written notice
to exercise any unexercised vested options.
4.2 Termination by Executive
The Executive may terminate his employment under this Employment Agreement at any time by
providing sixty (60) days’ written notice of his intention to do so. On the giving of such notice,
the Company shall have the right to elect, in its sole discretion, to terminate the Executive’s
employment at any time during this sixty day period by providing the Executive with written notice
to that effect. Upon such termination, the Company shall not be obligated to make any further
payments under this Employment Agreement, except for amounts due to the Executive to the end of the
sixty-day period.
In this circumstance, all unvested options are automatically cancelled at the end of the
sixty-day period and any unexercised vested options must be exercised within 60 days.
4.3 Termination by the Company Without Cause
The Company may terminate the Executive’s employment at any time without cause by
providing the Executive with written notice specifying his last day of active employment (“the date
of termination”). In lieu of additional actual notice, the Company will pay to the Executive his
monthly gross base salary and 1/12 of his target Short Term Incentive Plan (“STIP”) at the date of
termination each month for a period of up to 12 months following the date of termination (“the
Notice Period”), subject to the Executive’s obligation to look for alternate employment and to
advise the Company when alternate employment is commenced. In the event that the Executive does
commence alternate employment prior to the end of the Notice Period, the Company will cease paying
salary continuation, will calculate the amount of salary and target STIP that would have been paid
during the balance of the Notice Period and will pay in lump sum 50% of that amount, subject to
applicable withholdings or deductions. Salary continuance payments will be subject to all
applicable withholdings or deductions.
The Company will also continue all group medical benefits and life insurance plans in which
the Executive was actually enrolled immediately prior to the termination of his employment, with
the exception of any benefits that cannot be continued beyond the last day of
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the Executive’s active employment with the Company under the terms of the applicable
insuring agreement or plan, for the Notice Period or until the Executive obtains alternate
employment, whichever is earliest.
If the Company terminates the employment of the Executive under this Article 4.3, the Company
shall not be obligated to make any further payments under this Agreement, except for amounts due
and remaining unpaid at the time of such termination, plus a pro-rata portion of his targeted STIP
based on service to his last day of active employment, and payment of the amounts set out in this
Article 4.3. Such payments will fully discharge the Company’s obligation to the Executive under
applicable employment or labour statutes and laws.
If the Company terminates the employment of the Executive under this Article 4.3, the
Executive will be entitled to immediate vesting of a pro-rata portion of any options that were
scheduled to vest within one year of the date of termination under this Article 4.3, calculated by
multiplying the number of options that were scheduled to vest during the Notice Period by the
number of months from the last vesting date to the date of termination divided by twelve. All other
unvested options will be cancelled. All vested, unexercised options must be exercised within 60
days of the date of termination.
4.4 Disability
If the Company determines that the Executive has suffered a Disability as defined herein, the
Company may terminate the Executive’s employment on 90 days’ written notice given to the Executive.
The last day of the 90 day period will be the “date of termination” for the purposes of this
Article 4.4. “Disability” as used in this Agreement shall mean a physical or mental incapacity that
has prevented the Executive from performing the duties customarily assigned to him for a period of
one hundred and eighty (180) days, whether or not consecutive, out of any 12 consecutive months,
and that in the opinion of the Board, acting on the basis of an independent medical opinion from a
duly qualified medical practitioner, is likely to continue to affect the Executive to that same
degree. In addition, the Company shall pay to the Executive any base salary and a pro rata portion
of his targeted STIP owed in respect of any period of active employment prior to the date of
termination and for the 90 day period referred to herein. The pro rata portion of the targeted STIP
will be calculated by multiplying the annual targeted
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STIP amount by the number of calendar days to the last day of active employment plus 90 days
divided by 365.
In the event of such a termination, all options which have not vested by the end of the 90-day
notice period will be cancelled and all unexercised vested options must be exercised within one
year of the end of the 90-day notice period.
4.5 Death
In the event of death, the Executive’s employment shall terminate as if he had tendered his
resignation on that day and the Company shall have no further obligations or responsibilities
hereunder except to make payments earned but not yet paid to the Executive through the date of his
death, plus payment of a pro rata portion of his targeted STIP through the date of termination.
In this circumstance, all options that have not vested by the date of the Executive’s
death will be cancelled, and any unexercised vested options must be exercised within one year
of the Executive’s death.
ARTICLE 5: CHANGE OF CONTROL
5.1 Definition
For the purposes of this Agreement, “Change of Control” shall mean (a) the acquisition of
control in law (whether by sale, transfer, merger, consolidation, or otherwise) of Stratos Global
Corporation by a third party (that is, the acquisition of control over 50.1% of the issued and
outstanding voting shares of the Corporation), or (b) the sale, transfer, or other disposition of
all or substantially all (more than 50%) of the assets of the Company to a third party. The
percentage of assets sold shall be determined by dividing the book value of the assets sold
(determined immediately prior to the sale) by the total book value of the assets of the Company
(also determined immediately prior to the sale).
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5.2 Termination by the Company after a Change of Control
If the Executive’s employment is terminated by the Company without cause in the three-year
period after a Change of Control, or if the Executive is demoted, relocated to any place outside of
the D.C. Metro area, or is required to report to a person who is not the President or CEO of the
Company, which changes the Executive in his sole discretion chooses not to accept, the Executive
will be entitled to receive, in lieu of the payment provided for in Article 4.3, a lump sum payment
in lieu of notice equal to 1.5 times his gross base salary and target STIP at the time of such
termination, in addition to base salary and a pro rata portion of his targeted STIP through the
date of termination. In addition, the Company will maintain all group medical benefits and life
insurance plans in which the Executive was actually enrolled immediately prior to the termination
of his employment, with the exception of any benefits that cannot be continued beyond the last day
of the Executive’s active employment with the Company under the terms of the applicable insuring
agreement or plan, for a period of 1.5 years following such termination or until the Executive
obtains alternate employment, whichever is earliest.
In this circumstance, there will be immediate vesting of all unvested options. All vested
options must be exercised within 60 days of the date of termination.
ARTICLE
6: INTELLECTUAL PROPERTY, CONFIDENTIALY AND NON-COMPETITION
6.1 Schedule “B” Obligations
The Executive agrees to execute and be bound by the Intellectual Property, Confidentiality,
Non-Competition and Non-Solicitation Agreement attached as Schedule “B” to this Agreement.
6.2 Return of Documents
The Executive agrees that all documents (including software and information in
machine-readable form) of any nature pertaining to the activities of the Company and its affiliated
related associated or subsidiary companies, including the information or materials referred to in
Schedule “B” to this Agreement, in the Executive’s possession now or any time
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during the Period of Active Employment, are and shall be the property of the Company and that all
such documents and all copies of them shall be surrendered to the Company whenever requested by the
Company.
6.3 Non-disparagement
The Company agrees to refrain from making any statements or comments of a defamatory or
disparaging nature to third parties regarding the Executive or his performance and shall refrain
from making any statements or comments publicly or to members of the investment community relating
to the Executive without the prior written approval of the Executive, except as required by
applicable laws and regulatory bodies.
ARTICLE 7: MISCELLANEOUS COVENANTS
7.1 Rights and Waivers
All rights and remedies of the parties are separate and cumulative, and none of them,
whether exercised or not, shall be deemed to be to the exclusion of any other rights or remedies or
shall be deemed to limit or prejudice any other legal or equitable rights or remedies which either
of the parties may have.
7.2 Waiver
Any purported waiver of any default, breach or non-compliance under this Employment Agreement
is not effective unless in writing and signed by the party to be bound by the waiver. No waiver
shall be inferred from or implied by any failure to act or delay in acting by a party in respect of
any default, breach or non-observance or by anything done or omitted to be done by the other party.
The waiver by a party of any default, breach or non-compliance under this Employment Agreement
shall not operate as a waiver of that party’s rights under this Employment Agreement in respect of
any continuing or subsequent default, breach or non-observance (whether of the same or any other
nature).
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7.3 Severability
Any provision of this Employment Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to that jurisdiction, be ineffective to the extent of the prohibition or
unenforceability and shall be severed from the balance of this Employment Agreement, all without
affecting the remaining provisions of this Employment Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction.
7.4 Notices
(1) Any notice, certificate, consent, determination or other communication required or
permitted to be given or made under this Employment Agreement shall be in writing and shall be
effectively given and made if (i) delivered personally, (ii) sent by prepaid courier service or
mail, or (iii) sent prepaid by fax or other similar means of electronic communication, in each case
to the applicable address set out below:
(a) | if to the Company, to: | |||
STRATOS GLOBAL CORPORATION | ||||
0000 Xxxxxxxxx Xxxxx | ||||
Xxxxx 000 | ||||
Xxxxxxxx, Xxxxxxxx 00000 | ||||
X.X.X. | ||||
Attention: XXXX XXXXXXXX, with a copy to the Chief Executive Officer | ||||
Fax: (000)000-0000 | ||||
b) | if to the Executive, to: | |||
Xxxxxxx Xxxxxx | ||||
0000 Xxxxxxxxx Xxxxx | ||||
Xxxxx 000 | ||||
Xxxxxxxx, Xxxxxxxx 00000 |
(2) Any such communication so given or made shall be deemed to have been given or made
and to have been received on the day of delivery if delivered, or on the day of faxing or sending
by other means of recorded electronic communication, provided that the day in either
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event is a business day and the communication is so delivered, faxed or sent prior to 4:30
p.m. on that day. Otherwise, the communication shall be deemed to have been given and made and to
have been received on the next following business day. Any such communication sent by mail shall be
deemed to have been given and made and to have been received on the fifth business day following
the mailing thereof; provided however that no such communication shall be mailed during any actual
or apprehended disruption of postal services. Any such communication given or made in any other
manner shall be deemed to have been given or made and to have been received only upon actual
receipt.
(3) Any party may from time to time change its address under this Article 7.4 by
notice to the other party given in the manner provided by this Article.
7.5 Successors and Assigns
This Agreement shall enure to the benefit of, and be binding on, the parties and their
respective heirs, administrators, executors, successors and permitted assigns. The Company shall
have the right to assign this Employment Agreement to any successor (whether direct or indirect, by
purchase, amalgamation, arrangement, merger, consolidation or otherwise) to all or substantially
all of the business and/or assets of the Company provided only that the Company must first require
the successor to expressly assume and agree to perform this Employment Agreement in the same manner
and to the same extent that the Company would be required to perform it if no such succession had
taken place. The Executive by the Executive’s signature hereto expressly consents to such
assignment. The Executive shall not assign or transfer, whether absolutely, by way of security or
otherwise, all or any part of the Executive’s rights or obligations under this Employment Agreement
without the prior consent of the Company, which may be arbitrarily withheld.
7.6 Amendment
No amendment of this Employment Agreement will be effective unless made in writing and signed
by the parties.
7.7 Entire Agreement
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This Employment Agreement and its Schedules constitutes the entire agreement between the
parties pertaining to the subject matter of this Employment Agreement and supersedes all prior
agreements, understandings, negotiations and discussions, whether oral or written. There are no
conditions, warranties, representations or other agreements between the parties in connection with
the subject matter of this Employment Agreement (whether oral or written, express or implied,
statutory or otherwise) except as specifically set out in this Employment Agreement.
7.8 Governing Law
This Employment Agreement shall be governed by and construed in accordance with the laws
of the State of Maryland.
7.9 Headings
The division of this Employment Agreement into Articles and the insertion of headings are
for convenience of reference only and shall not affect the construction or interpretation of this
Employment Agreement.
ARTICLE 8: SATISFACTION OF ALL CLAIMS
8.1 Full Satisfaction
The terms set out in this Employment Agreement, provided that such terms are satisfied by
the Company, are in lieu of (and not in addition to) and in full satisfaction of any and all other
claims or entitlements which the Executive has or may have upon the termination of the Executive’s
employment pursuant to Articles 4 or 5 and the compliance by the Company with these terms will
affect a full and complete release of the Company and its parent and their respective affiliates,
associates, subsidiaries and related companies from any and all claims which the Executive may have
for whatever reason or cause in connection with the Executive’s employment and the termination of
it, other than those obligations specifically set out in this Employment Agreement. In agreeing to
the terms set out in this Employment Agreement, the Executive specifically agrees to execute a
formal release document to that effect and will deliver upon request appropriate resignations from
all offices and positions with the Company and its parent and their respective affiliated,
associated subsidiary or affiliated companies if, as and
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when requested by the Company upon termination of the Executive’s employment within the
circumstances contemplated by this Employment Agreement.
ARTICLE 9: DISPUTE RESOLUTION
9.1 Dispute Resolution:
Should any disagreement, claim or controversy arise between the Executive and the Company
with respect to this Employment Agreement, the termination of this Employment Agreement, or with
respect to the rights and obligations of the parties under this agreement or flowing from a
termination of the Executive’s employment, such dispute shall be settled by confidential final and
binding arbitration to be conducted in accordance with the rules of the American Arbitration
Association applicable to employment disputes. Any such arbitration will occur in Bethesda,
Maryland before a single Arbitrator.
ARTICLE 10: EXECUTIVE ACKNOWLEDGMENT
10.1 Acknowledgment.
The Executive acknowledges that: | |||
(a) | the Executive has had sufficient time to review this Employment Agreement thoroughly; | ||
(b) | the Executive has read and understands the terms of this Employment Agreement and the obligations hereunder; | ||
(c) | the Executive has been given an opportunity to obtain independent legal advice concerning the interpretation and effect of this Employment Agreement; and, | ||
(d) | the Executive has received a fully executed counterpart copy of this Employment Agreement. |
IN WITNESS WHEREOF the parties have executed counterpart copies of this Employment Agreement.
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/s/ Xxxx X. Xxxxxxxx
|
/s/ Xxxxxxx Xxxxxx | |||||||
Witness
|
Xxxxxxx Xxxxxx | |||||||
STRATOS GLOBAL CORPORATION | ||||||||
/s/ Xxxxxx Xxxxxxx
|
By: | /s/ Xxx Xxxx | ||||||
Witness
|
Xxx Xxxx | |
President and CEO |
SCHEDULE “A” TO THE EMPLOYMENT
AGREEMENT OF XXXXXXX XXXXXX
AGREEMENT OF XXXXXXX XXXXXX
REMUNERATION AND BENEFITS
1. Gross Base Salary. The Executive will receive an annual gross base salary in the amount of
$225,000 USD, subject to the provisions of Article 3 of the Employment Agreement.
2. Short Term Incentive Plan. The Executive will be eligible for short-term incentive
payment at target of 50% of his gross base salary. For calendar year 2004, STIP will be
pro-rated based on the period between August 9 and December 31, 2004 and:
(i) | 75% of the STIP payment will be awarded based on the Company’s achievement of its corporate financial goals; and | ||
(ii) | 25% will be awarded based on the Executive’s achievement of personal objectives. |
Moreover,
(a) | no bonus will be paid unless 80% of the financial results are attained; | ||
(b) | at 80% attainment, 50% of the financial results component of the target will be paid; | ||
(c) | at 100% attainment, 100% of the financial results component of the target will be paid; | ||
(d) | at 120% attainment or greater, 150% of the financial results component of the target will be paid; and | ||
(e) | pro-rating will apply between levels of attainment. |
Thereafter, the Board of Directors will decide on the applicable structure, threshold and
opportunities for future years.
2.1 | In calendar year 2004, for the corporate financial component, 100% payment of the 75% is based on the Company’s 100% attainment of financial goals, as set out on an annual basis by the Board. The 100% is currently weighted as follows: revenue (25%), EBITDA (50%) and Net Income (25%). |
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The personal objectives component will be based on the achievement of personal objectives as approved by the Board. The Board will determine the level of attainment and the pay-out. | ||
2.2 | The financial results and the personal objectives components for each fiscal year are to be submitted by the Executive to the appropriate committees of the Board for review and final determination or approval by the Board by January 31 of each year. In the event that either or both of the components are not submitted and/or approved by mid-February, the determination of these components must be set by the Board. The Board’s decision with respect to the financial results components and the personal objectives components in any calendar year is final. The financial results component will be adjusted for overlays for acquisitions, divestitures, financings and other significant unusual transactions as approved by the Board at the time of the transaction. | |
3.1 | Long Term Incentive Plan. In connection with his appointment to the position of Senior Vice President and Chief Legal Officer on or about August 9, 2004, the Executive received an option grant of 46,000 options at a price of $7.44 USD. One third of these options will vest on each of the first, second and third anniversary dates following the date of the grant. These options will expire 7 years from the date on which they were granted. | |
3.2 | Thereafter, on an annual basis, the Board will make a market competitive option grant or provide equivalent long term incentive compensation to the Executive taking into account the Board’s assessment of the Executive’s performance and market conditions. In this clause, “Market competitive option grant” means a grant that is comparable to grants made to similarly situated Executives in companies of similar size. | |
3.3 | The Executive will act in accordance with the Company’s Share Retention Policy for the Chief Legal Officer position when options are exercised. | |
4. | Other Elements of Compensation. The Executive’s annual compensation package shall also include: |
(a) | up to $18,000 USD per annum for executive benefits, including the use of a car and other bona fide expenses for which receipts are provided, e.g. club memberships and personal entertainment; | ||
(b) | participation in the Company’s standard U.S. pension and medical and life insurance programs, including group medical benefits, group life insurance and disability insurance, in accordance with the terms of the Company’s existing group health and insurance plan; and | ||
(c) | four weeks’ vacation annually. |
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5. | Expenses Incidental to Employment. The Company shall reimburse the Executive in accordance with its normal policies and practice for his travel and other expenses or disbursements reasonably and necessarily incurred or made in connection with the Company’s business. | |
6. | Deductions. All payments by the Company to the Executive are subject to all necessary deductions and withholdings. |
SCHEDULE “B” TO THE EMPLOYMENT
AGREEMENT OF XXXXXXX XXXXXX
AGREEMENT OF XXXXXXX XXXXXX
INTELLECTUAL PROPERTY, CONFIDENTIALITY, NON-COMPETITION and
NON-SOLICITATION AGREEMENT
NON-SOLICITATION AGREEMENT
For and in consideration of the employment of Xxxxxxx Xxxxxx (“Xxxxxx”) by Stratos Global
Corporation (“Stratos”) as its Senior Vice President and Chief Legal Officer, Xxxxxx agrees as
follows:
1. | Xxxxxx shall disclose immediately to Stratos all discoveries, inventions and
developments to any intellectual property or any improvements to any discoveries or inventions and
developments to any intellectual property made, conceived or first reduced to practice by Xxxxxxx
Xxxxxx, either solely or jointly with others, during his employment at Stratos which in any way
relates to the existing or contemplated scope of Stratos’ business or logical extension thereof. At
the expense of Stratos, and when requested (either during or subsequent to the contract), Xxxxxx
shall promptly execute patent application papers, assignments, and any other documents necessary
and do all he thinks necessary to protect such discoveries, inventions, or improvements and assigns
all rights respecting such discoveries, inventions, or improvements to Stratos. |
|
2. | Xxxxxx acknowledges that as Senior Vice President and Chief Legal Officer, and in any
other position as he may be appointed to, Xxxxxx is a fiduciary and will acquire information about
certain matters and things which are confidential to Stratos (which, for the purpose of this
Schedule B, includes its subsidiaries and affiliated companies) which information is the exclusive
property of Stratos including, but not limited to, all information in respect of: |
3. | financial information; |
||
4. | marketing, pricing and sales policies, techniques and concepts; |
||
5. | business strategies, plans and objectives; |
||
6. | product design and manufacturing information; and |
||
7. | trade secrets. |
3. | Xxxxxx acknowledges that the information referred to in paragraph 2 of this
Schedule B and any other confidential information could be used to the detriment of Stratos.
Accordingly, Xxxxxx undertakes, covenants and agrees to treat confidentially all such information
and to not disclose any such information to any third party, or use for the benefit of himself or
any third party, either during his employment with Stratos, except as may be necessary in the
proper discharge of his employment under this agreement, or |
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after the date of termination of Xxxxxx’ employment, however caused, except with the prior
written approval of Stratos, unless Xxxxxx can reasonably prove on the balance of probabilities
that the information was either (i) in the public domain, or (ii) was previously disclosed by
Stratos without restriction on its use. |
||
4. | Without in any way limiting Xxxxxx’ fiduciary obligations to Stratos, Xxxxxx agrees that
for a period of one year after his Period of Active Employment ends (the “Non-Competitive Period”),
Xxxxxx will not: |
(i) | directly or indirectly, become financially interested in, be employed by in a similar capacity,
or render any consultation or business advice with respect to, any business that is materially
competitive with Stratos in the business of the retail distribution of remote mobile and fixed
communication services to the same customers serviced by Stratos (the Business”) other than as a
passive investor in a publicly traded corporation of which he owns not more than five percent (5%)
of the outstanding shares; |
||
(ii) | solicit any Stratos customer with whom he has had material business contact in the 2 year
period prior to the end of his active employment to remove its business from or reduce its business
with Stratos; |
||
(iii) | take any action that will impair relations with customers and suppliers of Stratos; or |
||
(iv) | solicit any employee of Stratos to terminate his/her employment or hire any employee of
Stratos. |
Xxxxxx acknowledges that the Business is conducted globally, and that the territorial and time
limitations set forth in this Paragraph 4 are reasonable and properly required for the adequate
protection of the Business of Stratos. In the event any such territorial or time limitation is
deemed to be unreasonable by a court of competent jurisdiction, Xxxxxx agrees to the reduction of
the territorial or time limitation to the area or period which such court shall consider
reasonable. |
||
Any failure by Xxxxxx to comply with the provisions of this Paragraph 4 shall relieve Stratos of
any of its obligations pursuant to the Employment Agreement. |
||
5. | During the Non-Competitive Period, Xxxxxx further agrees to refrain from making any
statements or comments of a defamatory or disparaging nature to third parties regarding Stratos or
its officers, directors, personnel, business or affiliates, and shall refrain from making any
statements or comments publicly or to members of the investment community without the prior
written approval of Stratos, except as required by applicable law. |
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6. | Xxxxxx understands and agrees that Stratos may suffer irreparable harm in the event
that Xxxxxx breaches any of Xxxxxx’ obligations under this Schedule B and that monetary damages
shall be inadequate to compensate Stratos for such breach. Accordingly, Xxxxxx agrees that, in the
event of a breach or threatened breach by Xxxxxx of any of the provisions of this Schedule B,
Stratos shall, in addition to and not in limitation of any other rights, remedies or damages
available to Stratos at law or in equity, be entitled to an interim injunction, interlocutory
injunction and permanent injunction in order to prevent or to restrain any such breach by Xxxxxx,
or by any or all of Xxxxxx’ partners, co-venturers, employers, employees, servants, agents,
representatives and any and all persons directly or indirectly acting for, on behalf of or with
Xxxxxx. |
|
7. | If any portion of the restrictions set forth in this Schedule B should, for any reason
whatsoever, be declared invalid by a court of competent jurisdiction, the validity or
enforceability of the remainder of such restrictions shall not be adversely affected. |
|
8. | Each of the parties acknowledges and agrees that the restrictions contained in this
Schedule B are reasonable and valid and all defences to their strict enforcement are waived by each
party. |
|
9. | The provisions of this Schedule B shall survive the termination of this Employment
Agreement and shall be binding upon the parties after Xxxxxx ceases to be an employee of Stratos. |
Xxxx X. Xxxxxxxx
|
/s/ Xxxxxxx Xxxxxx | |
WITNESS
|
Xxxxxxx Xxxxxx | |
DATE: Aug 10, 2004 |