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EXHIBIT 10.16
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this "Agreement") is made effective
as of this ____ day of ________, 2000 (the "Effective Date"), by and between
OPTICAL ACCESS, INC., a Delaware corporation (the "Company"), and Xxxx Xxxxx, an
individual ("Executive"), with reference to the following facts:
RECITALS
WHEREAS, Executive is knowledgeable of and skillful in the Company's
business, which includes, but is not limited to the design and installation of
financial software and solutions (the "Business");
WHEREAS, the Company believes that Executive will be an integral part of
its management and is and will become knowledgeable of and be in part
responsible for developing the Business;
WHEREAS, the Company desires that Executive be employed as Chief
Financial Officer of the Company;
WHEREAS, Executive is willing to be employed by the Company and provide
services to the Company under the terms and conditions herein stated.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter contained, and for other good and valuable consideration, it is
hereby agreed by and between the parties hereto as follows:
AGREEMENT
1. EMPLOYMENT, SERVICES, AND DUTIES.
1.1 Employment. The Company hereby employs Executive as the Chief
Financial Officer and Vice President of Finance of the Company and Executive
hereby accepts such employment as of the Effective Date upon the terms,
covenants and conditions set forth herein.
1.2 Duties. Executive shall perform all duties assigned to him to the
best of his ability and in a manner satisfactory to the Company. As the Chief
Financial Officer and Vice President of Finance, Executive shall report to the
Board of Directors (or its designee) and shall have the responsibility for the
general management and control of the business and affairs of the Company and
shall perform all duties and have all powers which are commonly incident to the
offices of the Chief Financial Officer and Vice President of Finance or which
are delegated to him by the Board of Directors.
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1.3 Time and Efforts. Executive shall devote his full-time efforts,
attention, and energies to the Business of the Company. Although Executive may,
at his option, work flexible hours, he agrees that during the Term of
Employment, he shall not render commercial or professional services of any
nature to any other person or organization for compensation, without the prior
written consent of the Company, and he will not directly or indirectly engage in
any business that is competitive in any manner with the Business of the Company
or in any other way constitutes an actual or perceived conflict of interest.
2. TERM
The term of employment under this Agreement ("Term of Employment") shall
commence on the Effective Date and, subject to the provisions of Section 4
below, shall continue for a period of four (4) years.
3. COMPENSATION
As the total consideration for Executive's services rendered hereunder,
Executive shall be entitled to the following:
3.1 Base Salary. A salary of One Hundred Five Dollars ($105,000) per
year ("Base Salary") beginning the Effective Date through the Term of
Employment, payable in regular installments in accordance with the customary
payroll practices of the Company. Executive's Base Salary shall be subject to
such payroll deductions as required by law or as appropriate under the Company's
payroll deduction procedures and policies.
3.2 Discretionary Bonus. In addition to Base Salary, Executive shall be
eligible to receive a discretionary annual bonus based upon Executive's and the
Company's performance for the preceding fiscal year. The amount of such bonus,
if any, shall be determined by the Board in its sole discretion. Bonus
compensation under this Section 3.2 shall be earned as of the last day of the
applicable fiscal year provided that Executive is actively employed by the
Company on such date.
3.3 Expenses. During the Term of Employment, Executive is entitled to
reimbursement for reasonable and necessary business expenses, including, but not
limited to, automobile expenses, per Company policy, incurred by Executive in
connection with the performance of Executive's duties hereunder provided that
(a) such expenses are ordinary and necessary business expenses incurred on
behalf of the Company, and (b) Executive provides the Company with itemized
accounts, receipts and other documentation for such expenses as are reasonably
required by the Company.
3.4 Vacation. Executive shall be entitled to four (4) weeks vacation
time each year without loss of compensation during the Term of Employment.
Executive may be absent from his employment only at such times as the Company
shall determine from time to time. Executive's vacation shall be governed by the
Company's usual policies applicable to all Executives.
3.5 Fringe Benefits. Executive shall be entitled to participate in or
receive benefits under any employee benefit plan or other arrangement made
available by the Company to its officers and key management employees, subject
to and on a basis consistent with the terms, conditions and overall
administration of such plans and arrangements.
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4. TERMINATION
Executive's employment shall terminate prior to the expiration of the
Term of Employment set forth in Section 2 above upon the happening of the
following:
4.1 Termination For Cause. The Company may terminate this Agreement for
Cause. For purposes of this Agreement, "Cause" shall mean:
(a) a material act of dishonesty in connection with the
Executive's responsibilities as an employee;
(b) Executive's conviction of, or plea of nolo contendere to, a
felony or a crime involving fraud;
(c) Executive's willful misconduct, which cannot be cured on
reasonable notice, which has a material detrimental effect on the Company;
(d) Executive's commission of an act constituting a breach of
fiduciary duty to the Company;
(e) Executive's continued failure or refusal to follow the
proper, lawful, reasonable and specific directives of the Board of Directors; or
(f) Executive's consistent failure to perform his employment
duties as provided hereunder, which is not cured within ten (10) days following
Executive's receipt of written notice from the Board of Directors;
4.2 Termination Without Cause. The Company may terminate the employment
of Executive and all of the Company's obligations hereunder (except as
hereinafter expressly provided) at any time and for any reason or for no reason
during the Term of Employment without "Cause" by giving Executive written notice
of such termination, to be effective thirty (30) days following the giving of
such written notice.
4.3 Termination Due to Disability or Death. Executive's employment
hereunder may be terminated by the Company:
(a) Upon thirty (30) days' notice to Executive in the event that
Executive has been unable to substantially perform his duties under this
Agreement for an aggregate of 120 days within any 12-month period, or can
reasonably be expected to be unable to do so for such period, as the result of
Executive's incapacity due to physical or mental impairment, and within thirty
(30) days of receipt of such notice, Executive shall not have returned to the
full-time, continuing performance of his duties hereunder, and
(b) Immediately upon the death of Executive.
4.4 Voluntary Termination by Executive. Executive may terminate his
employment with the Company at any time during the Term of Employment by giving
the Company written notice of such termination, to be effective ninety (90) days
following the giving of such written notice. The Company, at its election, may
or may not require Executive to continue to perform his duties hereunder for all
or some of such ninety (90) day notice period.
4.5 Termination by Mutual Agreement of the Parties. Executive's
employment pursuant to this Agreement may be terminated at any time upon a
mutual agreement in writing of
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the parties. Any such termination of employment shall have the consequences
specified in such agreement.
5. EFFECT OF TERMINATION
5.1 Termination For Cause, Death or Disability. In the event that
Executive's employment is terminated pursuant to Section 4.1, Section 4.3,
Section 4.4 or Section 4.5 above, the Company shall pay to Executive on the date
of termination of employment (the "Termination Date") the following:
(a) The unpaid portion of the Base Salary provided in Section
3.1 and payment for any accrued vacation provided for in Section 3.5, in each
case computed on a pro rata basis to the Termination Date; and
(b) Any expense reimbursements due and owing to Executive as of
the Termination Date.
5.2 Termination Without Cause. In the event Executive's employment is
terminated pursuant to Section 4.2 above, the Company shall pay to Executive, or
his representatives, the following:
(a) The payments, if any, referred to in Sections 5.1(a) and
5.1(b);
(b) So long as Executive complies with the terms of Section 6
hereof following the Termination Date and executes a general release (in the
form attached hereto) in favor of the Company, severance compensation equal to
the following:
(i) the annual Base Salary provided for in Section 4.1
for the lesser of
(A) The remainder of the Employment Term; or
(B) Twelve (12) months of Base Salary (minus all
applicable payroll deductions), payable in six (6) equal monthly installments
commencing on the Termination Date, the first of such installments due
immediately upon termination; and
(ii) continued coverage under the benefit arrangements
provided pursuant to Section 3.6 for the lesser of
(A) The remainder of the Employment Term; or
(B) The 12-month period commencing on the
Termination Date.
6. NON-COMPETITION; CONFIDENTIALITY; NON-SOLICITATION.
6.1 Covenant Not to Compete. During the Term of Employment neither
Executive nor any affiliate of Executive, shall compete in any manner with the
Company and/or its affiliates, directly or indirectly, or own, manage, operate,
control, be a consultant to, participate or have any interest in or be connected
in any manner with the ownership, management, operation or control of any
business manufacturing, marketing or selling products or services similar to the
services of the Company and/or its affiliates. As used in this Agreement, an
"affiliate" of Executive is any corporation, partnership, association, or other
business entity which directly or indirectly is controlled or can have its acts
affected by Executive or in which Executive has an investment. Nothing contained
in this Agreement shall be deemed to preclude Executive from purchasing or
owning, directly or beneficially, as a passive investment, less than
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five percent (5%) of any class of publicly traded securities of any corporation
so long as Executive does not actively participate in or control, directly or
indirectly, any investment or other decisions with respect to such corporation.
6.2 Confidentiality and Return of Company Documents. Executive
recognizes and acknowledges that by virtue of his employment and position with
the Company, he will have access to certain trade secret and confidential
information of the Company and that such information constitutes valuable,
special and unique property of the Company, and derives economic value because
it is not generally known to the public or to others who could benefit from its
disclosure or use ("Trade Secrets"). Trade Secrets include, but are not limited
to, the following:
(a) customer information such as customer lists and other
information concerning particular needs, problems, likes or dislikes of the
Company's customers;
(b) the identities of the Company's customers, strategic
partners and investors;
(c) price information, such as price lists, the contents of
bids, and other information concerning costs or profits;
(d) technical information, such as formulae, know-how, computer
programs, software, secret processes or machines, inventions and research
projects, documentation, or other methods or processes;
(e) business information relating to costs, profits, sales,
markets, suppliers, plans for further development, market studies or research
projects;
(f) personnel or a compilation of data concerning the Company's
employees, consultants and independent contractors; and
(g) any other information valuable because of its private or
confidential nature.
Executive agrees that he will not at any time, during or after the
Employment Term, reproduce, copy or disclose any of the Company's Trade Secrets
and/or confidential business information to any person, firm, corporation,
association or other entity for any reason or purposes whatsoever, nor will
Executive advise, discuss or in any way assist any other person or firm
(including customers or former customers of the Company) in obtaining or
learning about the Company's Trade Secrets. Executive covenants and acknowledges
that upon separation from employment with the Company, he shall immediately
surrender to the Company all of the Company's Trade Secrets and any and all such
documents, materials or other tangible items pertaining to these Trade Secrets
that he may possess and that such Trade Secrets shall be and remain the sole
property of the Company. Executive agrees that if he is in doubt as to whether
any information, material, or document is a Trade Secret or is confidential, he
will contact the Board of Directors of the Company before disclosing or using
such information for any purpose other than in furtherance of Executive's duties
as an employee of the Company. For purposes hereof, "Trade Secrets" shall not
include any information or knowledge that is known to the public at the time of
disclosure by Executive, so long as Executive played no role in such initial
disclosure to the public.
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6.3 Solicitation of the Company's Employees or Customers. Executive
agrees that at any time during the term of his employment and for two (2) years
after that term he shall not solicit, directly or indirectly, any employees of
the Company to leave employment by the Company to work for or with Executive or
any competitor of the Company nor solicit any of the Company's customers or
potential customers who were solicited by the Company within a twelve (12) month
period immediately prior to the termination of Executive's engagement.
6.4 Survival of Confidentiality and Non-Solicitation. The requirements
and covenants of Sections 6.2 and 6.3 shall survive and continue after the Term
of Employment. Executive recognizes and agrees that any violation or threatened
violation of any provision contained in Sections 6.2 or 6.3 will cause
irreparable damage or injury to the Company and that the Company's remedies at
law for any breach of this Section 6 may not be adequate, and the exact amount
of the Company's damages in the event of such breach may be impossible to
ascertain. Therefore, the Company shall be entitled, as a matter of right,
without further notice and without the necessity of posting bond thereof, to
injunctive and other equitable relief restraining any threatened or further
violation of this Section. The Company's right to an injunction shall be in
addition to, and not in limitation of, any and other rights and remedies it may
have against Executive, including, but not limited to, the recovery of damages.
At all times during the term of this Agreement, Executive shall not, directly or
indirectly, engage or participate in, prepare or set up, assist or have any
interest in any person, partnership, corporation, limited liability company,
firm, association, or other business organization, entity or enterprise (whether
as an Executive, officer, director, member, agent, security holder, creditor,
consultant or otherwise) that engages in any activity in those geographic areas
where the Company conducts the Business, which activity is the same as, similar
to, or competitive with any activity now engaged in by the Company or in any way
relating to the Business.
7. NOTIFICATION TO NEW EMPLOYER
If Executive leaves the employ of the Company, Executive consents to the
Company's notification to any new employer of Executive's rights and obligations
under this Agreement.
8. ASSIGNMENT
This Agreement is personal in nature, and neither this Agreement nor any
part of any obligation herein shall be assignable by Executive. The Company
shall be entitled to assign this Agreement to any affiliate of the Company which
assumes the ownership and control of the business of the Company.
9. SEVERABILITY
Should any term, provision, covenant or condition or this Agreement be
held to be void or invalid, the same shall not affect any other term, provision,
covenant or condition of this Agreement, but such remainder shall continue in
full force and effect as though each such voided term, provision, covenant or
condition is not contained herein.
10. GOVERNING LAW AND SUBMISSION TO JURISDICTION
This Agreement shall be governed by and construed in accordance with the
laws of the State of Delaware applicable to contracts made and to be carried out
in California. Each of the parties submits to the exclusive jurisdiction of any
state or federal court sitting in Los Angeles, Delaware in any action or
proceeding arising out of or relating to this Agreement and further agrees that
all claims in respect of the action or proceeding may be heard and determined in
any
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such court and agrees not to bring any action or proceeding arising out of or
relating to this Agreement in any other court. Each party agrees that a final
judgment in any action or proceeding so brought shall be conclusive and may be
enforced by suit on the judgment or in any other manner so provided by law.
11. BINDING AGREEMENT
This Agreement shall inure to the benefit of and shall be binding upon
the Company, its successors and assigns.
12. CAPTIONS
The Section captions herein are inserted only as a matter of convenience
and reference and in no way define, limit or describe the scope of this
Agreement or the intent of any provisions hereof.
13. ENTIRE AGREEMENT
This Agreement contains the entire agreement of the parties relating to
the subject matter hereof, and the parties hereto have made no agreements,
representations or warranties relating to the subject matter of this Agreement
that are not set forth otherwise herein. This Agreement supersedes any and all
prior agreements, written or oral, with the Company. Any such prior agreements
are hereby terminated and of no further effect and Executive by the execution
hereof agrees that any compensation provided for under any such prior
agreement(s) is specifically superseded and replaced by the provision of this
Agreement. No modification of this Agreement shall be valid unless made by the
unanimous written consent of the Board of Directors of the Company. The parties
hereto agree that in no event shall an oral modification of this Agreement be
enforceable or valid.
14. NOTICE
All notices and other communications under this Agreement shall be in
writing (including, without limitation, telegraphic, telex, telecopy or cable
communication) and mailed, telegraphed, telexed, telecopied, cabled or delivered
by hand or by a nationally recognized courier service guaranteeing overnight
delivery to a party at the following address (or to such other address as such
party may have specified by notice given to the other party pursuant to this
provision):
If to the Company:
Optical Access, Inc.
00000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Secretary
with a copy to:
Xxxxxxxxxxx & Xxxxxxxx LLP
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxx Xxxxx-Xxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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Attention: Xxxxxx X. Xxxxxxx, Esq.
If to Executive:
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with a copy to:
15. ATTORNEY'S FEES
In the event that any party shall bring an action, reference,
arbitration or proceeding in connection with the performance, breach or
interpretation hereof, then the prevailing party in such action, reference,
arbitration or proceeding as determined by the court or other body having
jurisdiction shall be entitled to recover from the losing party all reasonable
costs and expenses of such action, reference, arbitration or proceeding,
including reasonable attorneys' fees, court costs, costs of investigation,
expert witness fees and other costs reasonably related to such proceeding.
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IN WITNESS WHEREOF, this Agreement is executed as of the day and year
first above written.
"COMPANY"
OPTICAL ACCESS, INC.,
a Delaware corporation
By:
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its:
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and
"EXECUTIVE"
By:
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Xxxx Xxxxx
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