EXHIBIT (d)(9)
NON-COMPETITION AGREEMENT
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THIS NON-COMPETITION AGREEMENT (this "Agreement") made as of June 19,
2002, by and between Tellium Inc., a Delaware corporation (the "Company") and
Xxxxx X. Xxxx (the "Executive").
W I T N E S S E T H:
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WHEREAS, through his employment with the Company, the Executive has
developed and will develop an expertise in the business of the Company and has
been and is a key employee of the Company, and the Company desires to retain his
services and loyalty;
WHEREAS, the Executive, in his employment with the Company, has learned
and will learn confidential information and trade secrets of the Company, and,
in furtherance of the Company's business, has established and will establish
personal and business relationships with the Company's clients who do business
with the Company, and the use by the Executive of such relationships or
information to compete with the Company or to aid others to compete with the
Company would have a detrimental effect on the future profitable operation of
the Company;
WHEREAS, the Executive has had an opportunity to review and has
reviewed this Agreement and has been advised to consult with counsel regarding
same; and
WHEREAS, the Company and the Executive have entered into that certain
Repurchase Agreement, dated as of June 19, 2002.
NOW, THEREFORE, in consideration of the above premises and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Executive and the Company hereby covenant and agree as
follows:
1. Non-Competition.
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(a) By and in consideration of the payments and benefits to be
provided, Executive agrees that from the date hereof and until the Executive's
employment with the Company is terminated for any reason whatsoever, including
any resignation by Executive or any termination of Executive by the Company (the
"Term") and for a period of one year thereafter (the "Non-Compete Period"), the
Executive shall not directly or indirectly own, lend money to, manage, operate,
join, control, consult with, render services, be employed by, or participate in
the ownership, management, operation or control of, or be connected in any
manner (including but not limited to holding the positions of shareholder,
director, officer, consultant, independent contractor, employee, partner or
investor) in any business in which the Company or any of its subsidiaries are
engaged in as of the date of this Agreement (which is core optical switches at
levels OC-48 and above) ("Competitive Business") during the Term; provided,
however, that, notwithstanding the foregoing sentence, the Executive shall be
permitted to (i) own, for investment purposes (directly or indirectly) not more
than five percent (5%) of total outstanding common stock or debt of a public
company and (ii) be employed by a
Competitive Business if the Executive's employment duties do not relate to the
business in which the Company or any of its subsidiaries is engaged in as of the
date of this Agreement;
(b) The Executive expressly recognizes and agrees that the restraints
imposed by this Section 1 are reasonable as to time and scope and are not
oppressive. The Executive further expressly recognizes and agrees that the
restraints imposed by this Section 1 represent a reasonable and necessary
restriction for the protection of the legitimate interests of the Company, that
the failure by the Executive to observe and comply with the covenants and
agreements in this Section 1 will cause irreparable harm to the Company, that it
is and will continue to be difficult to ascertain the harm and damages to the
Company that such a failure by the Executive would cause, that the consideration
received by the Executive for entering into these covenants and agreements is
fair, that these covenants and agreements and their enforcement will not deprive
the Executive of his ability to earn a reasonable living, and that the Executive
has acquired knowledge and skills in this field that will allow him to obtain
employment without violating these covenants and agreements. If, however, for
any reason any court determines under applicable law that the provisions in
Section 1 pertaining to duration, scope and geographic area in relation to
non-competition are too broad or otherwise unreasonable, that the consideration
provided hereunder is inadequate or that the Executive has been prevented
unlawfully from earning a livelihood (together, such provisions being
hereinafter referred to as "Restrictions"), such Restrictions shall be
interpreted, modified or rewritten, and such court is hereby requested and
authorized by the Company and the Executive to revise the Restrictions, to
include the maximum Restrictions as are valid and enforceable under applicable
law. The Executive further expressly acknowledges that he has been encouraged to
consult and has consulted independent counsel, and has reviewed and considered
this Agreement with that counsel, before executing this Agreement.
(c) The Executive shall inform any prospective or future employer of
any and all restrictions contained in this Agreement and provide such employer
with a copy of such restrictions (but no other terms of this Agreement), prior
to the commencement of that employment.
(d) During the Term and during the Non-Compete Period, the Executive
will not directly or indirectly disclose to any person, or use or otherwise
exploit for his own benefit or for the benefit of any person, other than the
Company, any Confidential Information or Trade Secrets other than any of the
foregoing which becomes public information without any breach of this Agreement
by the Executive. During the Term and during the Non-Compete Period, the
Executive will be allowed to disclose Confidential Information when required to
do so by legal process, by any governmental agency having supervisory authority
over the business of the Company or by any administrative or legislative body
that requires the Executive to divulge, disclose or make accessible such
information. If so ordered, the Executive shall give prompt written notice to
the Company prior to such disclosure in order to allow the Company the
opportunity to object to or otherwise resist such order.
For purposes of this Section 1(d), (i) the term "Confidential
Information" shall mean all information respecting the business and activities
of the Company, including, without
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limitation, the clients, customers, suppliers, employees, consultants, computer
or other files, projects, products, computer disks or other media, computer
hardware or computer software programs, marketing plans, financial information,
methodologies, know-how, processes, practices, approaches, projections,
forecasts, formats, systems, data gathering methods and/or strategies of the
Company (notwithstanding the immediately preceding clause, Confidential
Information shall not include (x) any information that is, or becomes, a part of
the public domain or generally available to the public (unless such availability
occurs as a result of any breach by Executive of any portion of this Agreement
or any other obligation Executive owes to the Company) or (y) any business
knowledge and experience of the type usually acquired by persons engaged in
positions similar to Executive's position with the Company, to the extent such
knowledge and experience is not specific to the Company and not proprietary to
the Company); and (ii) the term "Trade Secrets" shall mean the whole or any
portion or phase of any scientific or technical information, design, process,
procedure, computer program, formula or improvement of the Company that is
valuable and not generally known to the competitors of the Company, whether or
not in written or tangible form (notwithstanding the immediately preceding
clause, Trade Secrets shall not include (x) any information that is, or becomes,
a part of the public domain or generally available to the public (unless such
availability occurs as a result of any breach by Executive of this Agreement or
any other obligation Executive owes to the Company) or (y) any business
knowledge and experience of the type usually acquired by persons engaged in
positions similar to Executive's position with the Company, to the extent such
knowledge and experience is not specific to the Company and not proprietary to
the Company.
2. Enforcement. The parties hereto recognize that the covenants of the
Executive hereunder are special, unique and of extraordinary character. If the
Executive shall breach or fail to perform any term, condition or duty in this
Agreement required to be observed or performed by the Executive, the Company
shall be entitled, inter alia, to institute and prosecute proceedings in any
court of competent jurisdiction, to enforce the specific performance thereof by
the Executive and to enjoin the Executive from performing services for any
person or entity or otherwise acting in violation of Section 1 hereof. In the
event of a breach of the provisions of this Agreement, the Executive agrees that
the remedies at law available to the Company would be inadequate to protect the
Company's interests; accordingly, the Executive agrees not to challenge the
claim by the Company for any equitable remedy (including specific performance)
on the basis that there are adequate remedies at law. In case of any breach of
this Agreement, nothing herein contained shall be construed to prevent the
Company from seeking such other remedy in the courts as the Company may elect or
invoke.
3. Severability. Whenever possible, each provision in this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be held by a court
of competent jurisdiction to be prohibited by or invalid or unenforceable under
applicable law, then (a) such provision shall be deemed amended to accomplish
the objectives of the provision as originally written to the fullest extent
permitted by law and (b) all other provisions of this Agreement shall remain in
full force and effect.
4. Entire Agreement/Amendment. This instrument contains the entire
agreement between the parties hereto with respect to the subject matter hereof,
and may be amended only
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by an agreement in writing signed by the party against whom enforcement of any
waiver, change, modification or discharge is sought.
5. Assignment; Required Assumption.
(a) The Executive may not delegate the performance of any of his
obligations or duties hereunder, or assign any rights hereunder, without the
prior written consent of the Company. Any such purported delegation or
assignment in the absence of such written consent shall be null and void and of
no force or effect.
(b) Executive may not assign any obligations or responsibilities
under this Agreement or any interest herein, by operation of law or otherwise,
without the prior written consent of the Company.
(c) Subject to the limitations imposed by this Section 5, this
Agreement shall be binding on and inure to the benefit of the parties hereto and
their respective successors, permitted assigns, heirs and legal representatives.
(d) The Company shall require its successors and assigns, by
agreement in form and substance reasonably satisfactory to the Executive, to
expressly assume and agree to perform this Agreement in the same manner and to
the same extent that the Company would be required to perform it if no such
succession or assignment had taken place.
6. Notice. For the purposes of this Agreement, notices and all other
ommunications provided for in the Agreement shall be in writing, shall be
signed by the Executive if to the Company or by a duly authorized officer of the
Company if to the Executive, and shall be deemed to have been duly given when
personally delivered or sent by certified mail, return receipt requested,
postage prepaid, addressed to the respective addresses last given by each party
to the other, provided that all notices to the Company shall be directed to the
attention of the Board with a copy to the Secretary of the Company. All notices
and communications shall be deemed to have been received on the date of delivery
thereof or on the third business day after the mailing thereof (whichever is
earlier), except that notice of change of address shall be effective only upon
receipt.
7. Governing Law. THE CONSTRUCTION, VALIDITY AND INTERPRETATION OF
THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF DELAWARE WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.
8. No Waiver. No waiver or breach or condition of this Agreement
shall be deemed to be a waiver of any other subsequent breach or condition,
whether of like or different nature.
9. Counterparts. This Agreement may be executed in 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.
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10. No Employment or Service Contract. Nothing in this Agreement shall
confer upon the Executive any right to continue in the service of the Company
(or any subsidiary of the Company employing or retaining Executive) for any
period of time or interfere with or restrict in any way the rights of the
Company (or any subsidiary of the Company employing or retaining Executive) or
the Executive, which rights are hereby expressly reserved by each, to terminate
the employee status of the Executive at any time for any reason whatsoever, with
or without cause, subject to the provisions of any employment agreement between
the Company and the Executive.
11. Representations. The Company represents and warrants that it is
fully authorized and empowered to enter into this Agreement and that the
performance of its obligations under this Agreement will not violate any
agreement between it and any other person, firm or organization.
12. Conflicts Among Agreements. To the extent that there is any
conflict between or among the [Employment Agreement, Severance Agreement]
executed pursuant hereto and this Agreement, this Agreement shall govern.
13. Headings. The section headings herein are for convenience only and
shall not be used in interpreting or construing this Agreement.
(signature page follows)
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IN WITNESS WHEREOF, the parties have executed this Agreement, effective
as of the date first above written.
EXECUTIVE
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TELLIUM, Inc.
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By:
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Its:
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ATTEST
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By:
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