EXHIBIT 10.15
EMPLOYMENT AGREEMENT BETWEEN
SORRENTO NETWORKS CORPORATION AND XXXXXXX X. XXXXXXXX
This EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into
as of July 3,2002 ("the Effective Date"). The parties to this Agreement are
Sorrento Networks Corporation, a New Jersey corporation ("the Company") and
Xxxxxxx X. Xxxxxxxx ("Executive").
This Agreement is made with reference to the following facts:
A. The Company desires to engage Executive's services on the terms and
conditions set forth in this Agreement.
B. Executive desires to be employed by the Company on the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, the parties agree as follows:
1. EMPLOYMENT.
1.1 The Company hereby employs Executive, and Executive hereby
accepts employment by the Company, upon the terms and conditions
set forth in this Agreement.
1.2 Executive shall serve as Senior Vice President, Legal of the
Company and shall report to the Chief Executive Office. Executive
shall receive direction, and agrees to follow the direction, of
both the Chief Executive Officer ("CEO") and the Chief Financial
Officer ("CFO") of the Company.
1.3 Executive shall fully, promptly and responsibly perform all
services, acts or things required by the CEO or CFO.
1.4 Executive shall perform his services at the Company's corporate
offices in San Diego at least three full days per week and
Executive may, if desired, perform the services in Los Angeles in
a home office or in another agreed-upon Los Angeles location two
days per week. Executive shall be consistently available during
Company work hours at either the Company's San Diego offices or
Executive's Los Angeles home office (or other mutually agreed
location). Executive acknowledges that the Company's workday is
9:00 a.m. to 6:00 p.m. and further acknowledges that his physical
presence in the San Diego and Los Angeles offices is an important
term of this Agreement. Executive further understands that the
Company may from time to time require Executive to travel to
other locations in connection with the Company's business.
1.5 The Company will provide Executive with a shared administrative
assistant in
San Diego but Executive will not have an administrative assistant
in Los Angeles.
1.6 Executive shall not retain any outside counsel on behalf of the
Company without express prior approval of the CFO. Executive and
the CFO shall establish mutually agreeable written budget for
each project being handled by outside counsel.
1.7 Executive shall provide the CEO with written monthly status
reports on all material outstanding matters.
2. LOYAL AND CONSCIENTIOUS PERFORMANCE; NONCOMPETITION.
2.1 Executive shall devote his full business energies, interest,
abilities and productive time to the Company. Except with the
prior written consent of the CEO or CFO, during his employment
with the Company, Executive will not accept other employment,
consulting work or render other services of any kind, with or
without remuneration, to any person, business or organization.
2.2 Except as permitted herein, executive agrees not to acquire,
assume or participate in, directly or indirectly, any position,
investment or interest that Executive knows or should know is
adverse or antagonistic to the Company, its business, clients,
strategic partners, investors or prospects. The passive ownership
of less than five percent (5%) of the outstanding shares of
capital stock of any publicly-traded corporation shall not
constitute a breach of this paragraph.
3. COMPENSATION.
3.1 The Company shall pay executive an annual salary of Two Hundred
Fifty Thousand Dollars ($250,000) per year, payable in accordance
with the Company's regular payroll practices.
3.2 Executive's annual salary shall be reviewed annually by the CEO
and may be adjusted by the CEO in his sole discretion.
3.3 Executive shall be entitled to such bonuses (if any) or stock
options (if any) in addition to the stock options described in
this Agreement, as is determined by the Board in its sole
discretion.
3.4 All of Executive's compensation shall be subject to customary
withholding taxes and any other employment taxes as are as
commonly required to be collected or withheld by the Company.
3.5 The Company agrees to reimburse Executive for reasonable expenses
related to three day per week housing in San Diego. Company may,
at its sole discretion, provide suitable temporary housing at
Company's expense.
3.6 The Company agrees to provide necessary home office equipment to
Executive, and to reasonably reimburse Executive for other
approved home office-related expenses.
3.7 The Company agrees to reimburse Executive for all other
reasonable, necessary and approved business expenses incurred
during Executive's employment, subject to the Company's standard
documentation requirements.
3.8 Executive shall, in accordance with Company policy and the terms
of the applicable plan documents, be eligible to participate in
benefits under any benefit plan that may be in effect from time
to time and made available to its employees. The Company may
modify or cancel its benefit plan(s) in its discretion,
consistent with the requirements of state or federal law.
3.9 Executive shall, in accordance with Company policy, be entitled
to 3 weeks of paid vacation, accrued daily, per year. Executive
shall not accrue more than 3 weeks of vacation, and shall use
such vacation in a manner that is minimally disruptive to
Company's business and with the prior approval of the CEO.
3.10 Commencing September 1, 2002 or anytime thereafter, Executive may
request one salary advance up to twenty-five thousand dollars
($25,000). If approved, Executive agrees that any advanced
amounts shall be withheld from Executive's salary in equal
installments beginning four (4) months after the advance and
continuing for a maximum of three (3) months. Executive agrees
that the Company may withhold twenty percent (20%) of such
advance to apply toward interest accrued under the Promissory
Note referred to in Section 8 of this Agreement. Such salary
advance must also comply with all applicable laws, rules and
regulations of any government or regulatory authorities. If
Executive's employment with the Company ends for any reason,
Executive agrees that any advanced amounts may be withheld from
his final pay, including that from any severance, if any
severance is due.
3.11 Subject to the Board's approval through a duly enacted
resolution, and subject to the provisions below, Executive will
be granted an option to purchase 180,000 shares of FIBR stock
("the Option").
(a) Except as otherwise specifically provided in this Agreement,
the terms of the Option shall be governed by the Company's
standard stock option and/or stock plan documentation.
(b) The exercise price of the Option shall be the NASDAQ closing
price on the Effective Date of this Agreement.
(c) The Option shall vest in accordance with the following
schedule:
o 30,600 shares on the Effective Date of this Agreement;
o 30,600 shares six months after the Effective Date of
this Agreement;
o 5,940 shares per month beginning seven months after the
Effective Date until all 180,000 shares have, subject
to the other terms and conditions herein, become
vested.
(d) Executive agrees that no shares are exercisable within six
months of the effective Dare of this Agreement absent a
Change of Control as defined in paragraph 5.3 (b).
3.12 In the sole discretion of the CEO after consultation with the
Company's Compensation Committee, Executive may also be granted
an additional 20,000 share option six months from the Effective
Date of this Agreement ("the second Option"). If the second
Option is granted, those shares shall vest at a rate of 4,000
shares per month for five months thereafter. The strike price for
any of these additional options shall be the same as for the
options referenced in paragraph 3.11 hereof. Otherwise, the
terms of the second Option shall be governed by the Company's
standard stock option and/or stock plan documentation.
4. TERM.
Executive's employment under this Agreement is for no specified term.
Executive shall be an at-will employee, such that either the Company or
Executive may terminate Executive's employment at any time, with or without
cause or notice, and with or without reason, subject to the parties' rights and
obligations as provided in this Agreement. This Agreement shall also terminate
upon executive's death or disability, as that term is defined below.
5. SEVERANCE AND POST-EMPLOYMENT OBLIGATIONS.
5.1 Upon the termination of Executive's employment for any reason,
Executive shall be paid his accrued salary plus any accrued and
unused vacation through the effective date of termination. Except
as expressly set forth below, Executive's entitlement to salary,
benefits or other compensation shall cease upon the termination
of Executive's employment.
5.2 If Executive's employment is terminated by the Company without
Cause (as defined in section 5.3(a) or in the event Executive
tenders his resignation within ninety (90) days after a Change of
Control (as defined in section 5.3(b), Executive and the Company
each agree that they shall be bound by the terms of the
Consulting Agreement attached hereto as Exhibit A. In addition,
if, after being notified by the Company of his obligation to sign
the waiver and general in the form of Exhibit B within 20 days of
the effective date of termination of his employment, the Company
will immediately vest Executive's then-unvested stock options and
will, on the eighth day following Executive's execution of that
waiver and general release of claims, pay executive a lump sum
amount equal to six months of his then-current annual salary.
5.3 If Executive's employment is terminated by the Company for Cause,
Executive's entitlement to salary, benefits or other compensation
ends as of Executive's termination date.
(a) "Cause" as used in this Agreement means:
(i) the failure or refusal by Executive to perform his
duties hereunder; it is specifically contemplated by
the parties that Executive's failure to work in the San
Diego headquarters at least three full days per week
would be cause for termination;
(ii) the breach by Executive of any provisions of this
Agreement or Exhibits thereto;
(iii) the failure to promptly and fully perform all
reasonable work assignments and carry out all lawful
directives given by the CEO and the CFO;
(iv) the failure to be consistently available during Company
work hours at either the Company's San Diego offices or
Executive's Los Angeles home office (or other mutually
agreed location);
(v) the conviction of Executive of, or the entering of a
pleas of nolo contendere by Executive with respect to,
a felony;
(vi) Executive's drug or alcohol addiction; or
(vii) Executive's death or any disability which prevents
Executive from substantially performing the essential
functions of his position for at least thirty (30) days
or any sixty (60) day period.
(b) "Change of Control" shall have occurred if:
(i) a majority of the directors of the Company are persons
other than persons: (A) for whose election proxies
shall have been solicited by the Board of Directors of
the Company, or (b) who are then serving as directors
appointed by Board of Directors to fill vacancies on
the Board of Directors caused by death or resignation
(but not by removal) or to fill newly-created
directorships; or
(ii) fifty-one percent (51%) or more of the outstanding
voting power of the Company shall have been acquired
after the date hereof (as defined in Rule 13d-3 under
the 1934 Act or any successor rule thereto) by any
person, or group of two or more persons acting as a
partnership, limited partnership, syndicate, or other
group acting in concert for the purpose of acquiring,
holding or disposing of voting stock of the Company; or
(iii) a reorganization, merger, consolidation or other
corporate transaction or sale or liquidation or other
disposition of all or substantially all of the assets
of the Company occurs (other than (i) a transaction
with a subsidiary of the Company other than Sorrento
Networks, Inc. or (ii) a transaction in which the
holders of voting stock of the Company
immediately before such disposition as a class continue
to hold immediately after the merger at least fifty
percent (50%) of all outstanding voting power of the
surviving or resulting corporation or its parent
(including, without limitation, a company which owns
directly or indirectly the Company or all or
substantially all of its pre-acquisition assets) in
substantially the same proportion as their ownership of
common stock of the Company immediately before the
transaction).
For purposes of this Agreement, "disability" shall mean the
expiration of any sixty (60) day period, during which Executive
is unable to perform his assigned duties due to physical or
mental incapacity for at lease thirty (30) consecutive or
non-consecutive days. In the event of any dispute regarding the
existence of Executive's disability, the matter will be resolved
by the determination of a majority of three physicians qualified
to practice medicine in California, one to be selected by each of
Executive and the Board and the third to be selected by the two
designated physicians. For this purpose, Executive will promptly
submit to appropriate medical examinations. In the event of a
disability dispute, the three physician panel must make its
determination within thirty (30) days of the initiation of the
dispute. During that determination period, executive shall
continue to receive his salary and other benefits and his stock
options shall continue to vest as scheduled.
6. CONFIDENTIAL AND PROPRIETARY INFORMATION; NONSOLICITATION
6.1 Executive agrees to execute and abide by the Proprietary
Information and Inventions Agreement attached to this Agreement
as Exhibit C.
6.2 Executive recognizes that his employment with the Company will
involve contact with information of substantial value to the
Company, which is not generally known, and which gives the
Company an advantage over its actual or potential competitors who
do not know or use it. This confidential information includes,
but is not limited to, techniques, designs, drawings, processes,
inventions, developments, plans, code, equipment, prototypes, and
employee, sales, marketing, and customer, business and financial
information relating to the business, products, practices and
techniques of the Company (hereinafter referred to as
"Confidential and Proprietary Information"). During his
employment and thereafter, Executive will at all times regard and
preserve as confidential such Confidential and Proprietary
Information in any manner at any time, or use any Confidential
and Proprietary Information except on behalf of the Company,
without the prior written consent of the Company.
6.3 While employed by the Company and for one (1) year thereafter,
Executive agrees that in order to protect the Company's
Confidential and Proprietary Information from unauthorized use,
that Executive will not, either directly or through others,
solicit, attempt to solicit or provide any assistance to anyone
soliciting or attempting to solicit: (i) any employee, consultant
or independent contractor of the Company to terminate his or her
relationship with the Company in order to become an employee,
consultant or independent contractor to or for any other person
or business entity; or
(ii) the business of any customer, partner or strategic alliance
of the Company which, at the time of termination or immediately
prior thereto, was doing business with the Company, to the extent
that that business involves and developing, designing, producing,
or marketing any product or service being developed, produced, or
marketed by the Company as of the date of termination immediately
prior thereto.
7. TRADE SECRETS OF OTHERS.
It is the understanding of both the Company and Executive that
Executive shall not divulge to the Company any confidential
information or trade secrets belonging to others, including
Executive's former employers, nor shall the Company seek to
elicit from Executive any such information. Consistent with the
foregoing, Executive shall not provide to the Company, and the
Company shall not request, any documents or copies of documents
containing such information.
8. PROMISSORY NOTE.
Executive shall execute the Promissory Note in the form attached
hereto as Exhibit D.
9. ASSIGNMENT AND BINDING EFFECT.
This Agreement shall be binding upon and inure to the benefit of
Executive and Executive's heirs, executors, personal representatives,
assigns, administrators and legal representatives. Due to the unique
and personal nature of Executive's duties under the Agreement, neither
this Agreement nor any rights or obligations under this Agreement
shall be assignable by Executive. This Agreement shall be binding upon
and inure to the benefit of the Company and its successors, assigns
and legal representatives. The Company will require any successor to
all or substantially all of the business and/or assets of the Company,
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 had taken place.
10. NOTICES
All notices or demands of any kind required or permitted to be given
by the Company or Executive under this Agreement shall be given in
writing and shall be personally delivered (and receipted for) or
mailed by certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Company:
Chief Executive Officer
Sorrento Networks Corporation
0000 Xxxx Xxx Xxxx
Xxx Xxxxx, XX 00000
If to Executive:
Xxxxxxx X. Xxxxxxxx
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Any such written notice shall be deemed received when personally
delivered or three (3) days after its deposit in the United States
mail as specified above. Either party may
Change its address for notices by giving notice to the other party in
the manner specified in this section.
11. INTERPRETATION; CONSTRUCTION.
The headings set forth in this Agreement are for convenience of
reference only and shall not be used in interpreting this Agreement.
This Agreement has been drafted by legal counsel representing the
Company, but Executive has consulted with his own independent counsel
with respect to the terms of this Agreement. Each party and its
counsel has reviewed and revised, or had an opportunity to review and
revise, this Agreement, and the normal rule that any ambiguities are
to be resolved against the drafting party shall not be employed in the
interpretation of this Agreement.
12. REPRESENTATIONS AND WARRANTIES;WAIVER OF ANY EXISTING CLAIMS.
Executive represents and warrants that he is not restricted or
prohibited, contractually or otherwise, from entering into and performing each
of the terms and covenants contained in this Agreement, and that his execution
and performance of this Agreement will not violate or breach any other
agreements between Executive and any other person or entity. Executive further
represents and warrants that as of the Effective Date of this Agreement he is
aware of no tortuous or unlawful conduct by the Company.
In consideration of the benefits of this Agreement, Executive hereby
releases, and forever discharges the Company, its officers, directors,
agents, employees, stockholders, successors, assigns, affiliates and
benefit plans, of and form any and all damages, indemnities and
obligations of every kind and nature, in law, equity, or otherwise,
known and unknown, suspected and unsuspected, disclosed and
undisclosed, arising at any time prior to the Effective Date of this
Agreement with respect to any claim(s) of any kind whatsoever against
the Company, including but not limited to claims pursuant to any
federal, state or local law relating to employment, such as
discrimination claims under the California Fair Employment and Housing
Act, the Federal Age discrimination in
employment Act of 1967, as amended ("ADEA"), or Title VII of the Civil
Rights Act of 1964, or claims for wrongful termination, breach of the
covenant of good faith and fair dealing, contract claims, tort claims,
and wage or benefit claims, including but not limited to, claims for
salary, bonuses, commissions, stock, stock options, vacation pay,
fringe benefits, severance pay or any form of compensation.
In releasing claims unknown to Executive at present, Executive hereby
waives all rights and benefits under Section 1542 of the California
Civil Code, and any law or legal principle of similar effect in any
jurisdiction:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR."
Executive acknowledges that, among other rights, Executive is waiving
and releasing any rights Executive may have under the ADEA, that this
release and waiver is knowing and voluntary, and that the
consideration given for this release and waiver is in addition to
anything of value to which Executive was already entitled as an
executive of the Company.
Executive further acknowledges that he has been advised, as required
by the Older Workers Benefit Protection Act, that: (a) the release and
waiver granted herein does not relate to claims which may arise after
this release and waiver is executed; (b) he has the right to consult
with an attorney prior to executing this release and waiver (although
he may choose voluntarily not to do so); and if he is over 40 years
old upon execution of this (c) he has twenty-one (21) days from the
Effective Date in which to consider this release and waiver (although
he may choose voluntarily to execute this release and waiver earlier);
(d) he has seven (7) days following the execution of this release and
waiver to revoke his consent to this release and waiver; and (e) this
release and waiver shall not be effective until the seven (7) day
revocation period has expired.
13. ARBITRATION.
a. The parties agree to arbitrate any dispute, claim or controversy
arising from or concerning Executive's employment, his
termination from employment, any terms or conditions of his
employment, the interpretation or enforcement of this Agreement
or the rights and duties of any person in relation to this
Agreement including without limitation claims of employment
discrimination or harassment under Title VII of the Civil Rights
Act, the California Fair Employment & Housing Act, the Age
Discrimination in Employment Act, the Americans with Disabilities
Act, or 42 U.S.C. section 1981, claims for violation of the
Employment Retirement Income Security Act, the California Labor
Code, or the Fair Labor Standards Act, claims for breach of
employment contract or the implied covenant of good faith and
fair dealing, wrongful discharge, or tortuous conduct (whether
intentional or negligent) including defamation,
misrepresentation, fraud or infliction of emotional distress but
excluding claims for workers' compensation benefits or claims for
wages before the California Department of Industrial Relations
(collectively, "Covered Claims").
b. The arbitration shall be conducted by a single neutral arbitrator
in accordance with the current rules issued by the American
Arbitration Association ("AAA") for resolution of employment
disputes. The arbitration shall take place in the City of San
Diego. The Company will pay the fee for the arbitration
proceeding, as well as any other charges by the AAA.
c. The parties hereby authorize the use of the AAA's Optional Rules
for Emergency Measures of Protection in any matter involving the
alleged breach of Executive's
obligations regarding confidentiality, inventions,
non-solicitation or limitations on other employment or activities
outside of his employment with the Company.
d. The Arbitrator shall issue a written award, The award shall be
final and binding upon the parties. The arbitrator shall have the
power to award any type of relief that would be available in a
court of competent jurisdiction. Any award may thereafter be
entered as a judgment in any court of competent jurisdiction.
e. The parties agree to file any demand for arbitration within the
time limit established by the applicable statute of limitations
for the asserted claims. Failure to demand arbitration within the
prescribed period shall result in waiver of any claims.
Failure to demand arbitration within the prescribed period shall
result in waiver of any claims.
f. It is the intent of the parties to provide for mandatory
arbitration to the fullest extent of, but not beyond what is
permitted by, applicable law. A court construing this arbitration
provision may modify or interpret it to the extent necessary so a
to render it enforceable. If the parties' agreement to arbitrate
is declared unenforceable and cannot be administered,
interpreted, or modified to be enforceable, Executive agrees to
waive any right he may have to a jury trial with respect to any
Covered Claim.
14. LITIGATION COSTS.
Should any litigation, arbitration, or administrative action be
commenced concerning a Covered Claim, the party prevailing in such
action shall be entitled, in addition to such other relief as may be
granted, to a reasonable sum for that party's costs and attorney's
fees, which shall be determined by the court, arbitrator, or
administrative agency.
15. AMENDMENT AND WAIVER.
The provisions of this Agreement may be amended or waived only with
the prior written consent of the Company and Executive, and no course of conduct
or failure or delay in enforcing the provisions of this Agreement shall affect
the validity, binding effect to or enforceability of this Agreement.
16. CHOICE OF LAW.
This Agreement is made in San Diego, California. The parties agree
that it shall be construed and interpreted in accordance with laws of the State
of California.
17. INTEGRATION.
This Agreement (and any attached Exhibits) is the complete, final and
exclusive agreement of the parties relating to the subject matter of this
Agreement, and supersedes all prior implied, oral and/or written agreements or
arrangements between the parties unless otherwise expressly provided herein.
Except as expressly stated otherwise herein, all previous agreements between
Executive and the Company, its current
and former officers, directors, affiliates or subsidiaries, whether written or
oral, are hereby terminated without any further liability to the Company.
18. ASSUMPTION.
The Company shall require any successor (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or
substantially all of the business or assets of the Company, expressly
to assume and agree to perform this Agreement in the same manner and
to the same extent that the Company would be required to perform if no
such succession had taken place.
19. SEVERABILITY.
The finding by a court or arbitrator of the unenforceability,
invalidity or illegality of any provision of this Agreement shall not
render any other provision of this Agreement unenforceable, invalid or
illegal. It is the parties' desire that such court or arbitrator
should modify or replace any invalid or unenforceable term or
provision with a valid and enforceable term or provision that will
most accurately represent the parties' intention with respect to the
invalid or unenforceable term or provision.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
SORRENTO NETWORKS CORPORATION
By: By:
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Xxxxxxx X. Xxxxxxxx Xxx Xxxxxxxxx
Chief Financial Officer
