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Exhibit 10.18
KEY EMPLOYEE EMPLOYMENT AGREEMENT
THIS KEY EMPLOYEE EMPLOYMENT AGREEMENT ("Agreement") executed
as of the 27th Day of December, 2000, by and between ADVANCED SWITCHING
COMMUNICATIONS, INC., a Delaware corporation ("Employer") and Xxxxxx X. Xxxxxx
("Employee"), an individual resident of 00000 Xxxxxxxx Xxxxxx #000, Xxxxx
Xxxxxxx, XX 00000.
W I T N E S S E T H:
WHEREAS, the Employee is the Vice President, General Counsel
and Secretary and Employer and Employee shall each benefit in a significant way
if the Employer retains or continues to retain the services of Employee for the
future and accordingly the parties hereto have determined it to be in their
mutual best interest to enter into this Employment Agreement; and
NOW, THEREFORE, in consideration of the covenants and
conditions hereinafter stated, and intending to be legally bound, the parties
hereto agree as follows:
1. EMPLOYMENT: Employer hereby employs Employee
and Employee hereby accepts employment upon the terms and conditions set forth
herein.
2. TERM: Subject to the provisions for
termination as hereinafter provided, the term of this Agreement shall begin on
the date set forth above and shall continue for a period of three (3) years
unless sooner terminated as herein provided.
3. COMPENSATION:
a. BASE SALARY: For services rendered by
Employee under this Agreement, the Employer shall pay to the Employee base
salary at the rate of $220,000 per year, payable in semi monthly installments or
more frequently according to the policies of the Employer. Said salary is
subject to annual adjustments as approved by the Board of Directors of Employer,
or the Chief Executive Officer of Employer.
b. BONUSES: Employee shall receive such bonuses
as may be determined by the Board of Directors of Employer or the Chief
Executive Officer of Employer. A target bonus of 25% of salary for 2001 is
payable based on mutually agreed goals and objectives.
c. STOCK OPTIONS: A stock option grant of
150,000 shares of ASC's common stock. The vesting period for the options is 25%
on the 1-year anniversary of the grant and 2.083% on the 13th - 48th month. All
stock options are subject to grant by
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ASC's board of directors. In case of change of control, all options will fully
vest.
d. EXPENSES: In addition to base salary and
bonuses, Employer shall reimburse Employee for all necessary business expenses
incurred by him in the performance of his duties, including, without limitation,
expenses for travel, meals, entertainment and other miscellaneous business
expenses. Employee shall submit to Employer written itemized expense accountings
and such additional substantiation and justification as Employer may reasonably
request.
e. OTHER EMPLOYEE BENEFITS. Employee shall be
provided with such other benefits as are outlined in the Letter of Intent or are
made available to other Employees of the Employer, including but not limited to,
medical and permanent disability insurance.
4. DUTIES; EXTENT OF SERVICES: Employee is
engaged for the purpose of (i) performing services as a VP, General Counsel, and
shall train the Employer's other employees (as applicable). Employee shall have
such other duties as shall be assigned by the board of directors or Chief
Executive Officer of Employer. Employee shall devote full time and attention,
and best efforts, to the performance of the duties described hereunder. Key
Employee acknowledges that the discharge of the duties of Employee may require
Employee to work, from time to time, at reasonable hours on weekends or evenings
and accordingly Employee agrees not to undertake any part time work
responsibilities without the prior written approval of Employer and Employee
agrees that this is a reasonable restriction.
5. WORKING FACILITIES: The Employee shall be
furnished with appropriate working facilities and tools necessary for the proper
performance of his duties.
6. SPECIAL COVENANTS REGARDING WORK PRODUCT AND
INTELLECTUAL PROPERTY.
a. In consideration of the salary or wages received by
Employee and as a condition upon, and part of the consideration for, the
employment or continued employment of Employee, but without limitation upon
Employer's right to terminate the Employee's employment, Employee hereby assigns
and transfers to Employer, and agrees that Employer shall be the owner of all
inventions, discoveries, drawings, computer software, algorithms, improvements
and devices heretofore or hereafter conceived, including intellectual property
rights such as patents and copyrights (hereinafter referred to as "work
product") developed or made by Employee, either alone or with others, in whole
or in
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part during Employee's employment by Employer, which are useful in, or directly
or indirectly related to Employer's business or which relate to, or are
conceived, developed or made in the course of, Employee's employment or which
are developed or made from, or by reason of knowledge gained from, such
employment. Employer shall have the right to use work product as described
hereinabove, whether original or derivative, in any manner whatsoever, and
Employee acknowledges that all work product described hereinabove shall be
considered as "work made for hire" belonging to the Employer.
b. Employee hereby agrees to disclose promptly and in
writing to any officers or representatives designated by Employer all work
product heretofore or hereafter conceived or made by Employee alone or with
others during Employee's employment to which Employer is entitled as above
provided and agrees not to disclose such work product except as required by his
employment, without the express consent of the Employer. Employee further agrees
that during his employment by Employer and at any time thereafter, he will, upon
the request of Employer, execute proper assignments to Employer of any and all
such work product to which Employer is entitled as above provided, and will
execute all papers and perform all other lawful acts which Employer may deem
necessary or advisable for the preparation, prosecution, procurement and
maintenance of trademark, copyright and/or patent applications and trademarks,
copyrights and/or patents of the United States of America and foreign countries
for such work product to which Employer is entitled as above provided, and will
execute any and all proper documents as shall be required or necessary to vest
title in Employer to such work product and all trademark, copyright, and patent
applications and trademarks, copyrights and patents pertaining thereto. It is
understood that all expenses in connection with such trademarks, copyrights, and
patents and all applications related thereto shall be borne by Employer, but
Employer shall be under no obligation to protect by trademark, copyright,
patent, or otherwise any such work product except at its own discretion and to
such extent as Employer shall deem desirable. Employee shall not be entitled to
any additional compensation, other than his regular salary or wages and his
participation in an employee benefit plan, if any, of the Employer, for any
services rendered by Employee as herein provided during the term of his
employment. Employee shall be entitled to reimbursement for reasonable expenses
incurred in connection with employment hereunder, provided, however, that such
expenses are properly documented and approved.
c. Notwithstanding the foregoing, the provisions of this
agreement do not apply to an invention for which no equipment, supplies,
facility, or trade secret information of the Employer was used and which was
developed entirely on the Employee's own time, unless (a) the invention is
useful in, or directly or
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indirectly related to (i) Employer's business or relates to, or is conceived,
developed or made in the course of, Employee's employment or is developed or
made from, or by reason of knowledge gained from, such employment, or (ii) to
the Employer's actual or demonstrably anticipated research or development, or
(b) the invention or rendering results from any work performed by the Employee
for the Employer.
7. RESTRICTIVE COVENANTS/PROTECTION OF
PROPRIETARY INFORMATION:
a. The parties hereto recognize that Employee's
knowledge and skill are a material factor in inducing the Employer to enter into
this Agreement. Further, in the course of his employment, and because of the
nature of his responsibilities, Employee will acquire valuable and confidential
information and trade secrets with regard to the Employer's business operation,
including, but not limited to, Employer's existing and contemplated services and
products, documentation, technical data, business and financial methods and
practices, plans, pricing, lists of Employer's customers and prospective
customers, methods of obtaining customers, financial and operational data of
Employer's present and prospective customers, and the particular business
requirements of the Employer's present and prospective customers. In addition,
Employee may develop on behalf of the Employer, a personal acquaintance with
some of the Employer's customers and prospective customers. As a consequence,
Employee will occupy a position of trust and confidence with respect to the
Employer's affairs and its services. In view of the foregoing, and in
consideration of the remuneration paid and to be paid to the Employee, Employee
agrees that it is reasonable and necessary for the protection of the good will
and business of the Employer that the Employee make the covenants contained in
subparagraphs b., c., and d. below regarding the conduct of Employee during and
after his employment relationship with the Employer, and that the Employer will
suffer irreparable injury if Employee engages in conduct prohibited thereby.
b. Employee covenants and agrees that for a period of
twenty four (24) months from the termination of his employment for any reason
whatsoever, or the from the expiration of the term, (the "Non-Compete Period"),
he will not directly or indirectly, as principal, agent, owner, joint venturer,
investor, employee, or consultant, develop software or related hardware, or
assist others to develop software or related hardware, which is in competition
with the Employer, with functionality similar to the functionality of any
software product(s) developed or under development by Employer, anywhere in the
world (the "Non-Compete Zone"). "Develop software products or related hardware"
shall mean design, create, general or detailed functional or technical
specifications for, create or write code for, enhance, debug or
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otherwise modify code for, or otherwise participate in the creation or
modification of software product(s) or hardware related thereto. Employee agrees
that the Employer is engaged in the development of certain internet technology
which is capable of application on a worldwide basis and, accordingly, the above
restriction is reasonable and will not prohibit Employee from obtaining
employment at the date of termination of this Agreement.
c. Employee further covenants and agrees that during the
Non-Compete Period, he shall not, directly or indirectly, (i) induce or attempt
to induce, or aid others in inducing, an employee of Employer or its affiliates
to leave the employ of Employer or its affiliates, or in any way interfere with
the relationship between Employer or its affiliates and an employee thereof, or
(ii) in any way interfere with the relationship between Employer or its
affiliates and any customer, supplier, licensee or other business relation of
Employer or its affiliates.
d. Employee agrees that any and all of the Employer's
confidential and proprietary information, which includes the matters contained
above, including all intellectual property rights therein, shall be and shall
remain the sole and exclusive property of the Employer. While in the employ of
the Employer, or at any time thereafter, Employee will not, without the express
written consent of the Employer, directly or indirectly, communicate or divulge
to or use for the benefit of himself or any other person, firm, association or
corporation, any of the Employer's trade secrets or confidential information,
including, by way of illustration, the matters contained in subparagraph a.
above, or which were communicated to or otherwise learned of or acquired by
Employee in the course of his employment with the Employer, except that Employee
may disclose such matters to the extent that disclosure is required, (i) in the
course of his employment with Employer or (ii) by a court or governmental agency
of competent jurisdiction without proof of specific damages. Employee will not
use such trade secrets or confidential information in any way or in any capacity
other than as an employee of the Employer and to further the interest of the
Employer.
8. VACATION: Employee shall be entitled to
receive such paid vacation during each year of this Agreement, while employed
full-time as the Employer shall approve from time to time. Vacation shall be
taken at such time or times as will not unreasonably hinder or interfere with
Employee's representation of the Employer's customers or the business or
operations of Employer.
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9. DISABILITY: Employee's disability and/or
sick leave shall be covered by the usual and customary policies and procedures
of the Employer.
10. TERMINATION:
a. WITH CAUSE: Employer may, at any time,
terminate this Agreement with cause, with no further obligations to Employee.
With cause shall consist of:
i. The Employee's conviction of, or plea of guilty or
nolo contendere to, a felony or a crime of falsehood or involving moral
turpitude, or fraud or other act or acts of dishonesty on the Employee's part;
ii. The failure after reasonable notice and reasonable
cure period of Employee to perform his duties to the Employer or the failure of
Employee to comply with the reasonable directions of the board of directors or
Chief Executive Officer of Employer;
iii. The determination of the Board of directors in the
exercise of its reasonable judgement that the Employee has intentionally
committed an act that negatively affects the Employer's business or reputation
or intentionally or not indicates alcohol or drug abuse by Employee that
adversely affects his performance hereunder;
iv. Direct or indirect competition with the Employer;
and/or
v. A material breach after reasonable notice and
reasonable cure period by Employee of the terms of this Agreement or that
certain Key Employee Stock Purchase Agreement between Employer and Employee.
If the Employee's Employment is terminated with cause,
Employee shall be entitled to receive accrued Base Salary.
b. WITHOUT CAUSE: Without cause, the Employee
may terminate this Agreement upon two (2) weeks written notice to the Employer.
In such event, Employee shall continue to render his services up to the date of
termination. Without cause, the Employer may terminate this agreement at any
time with two (2) weeks written notice to Employee by paying one year's salary.
Termination without cause by Employee shall mean the voluntary termination of
the Agreement by Employee. In such event, Employee, if requested by the
Employer, shall continue to render his services and shall be paid his regular
compensation, including any declared but unpaid bonuses, up to the date of
termination.
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c. CONSTRUCTIVE DISMISSAL: If one of the
following events occur during Employee's employment, then Employee may resign
his ASC employment as being constructively dismissed and receive payment of one
year's salary.
1. If Employee is demoted from the
position of VP, General Counsel
(which title may be changed)
without his consent.
2. If Employee's duties are materially
reduced or the level of his job
responsibilities is materially
reduced without his consent.
3. If Employee's base salary is
reduced.
11. WARRANTIES OF EMPLOYEE: As a material
consideration in the employment of Employee, Employee hereby confirms
representations previously made to Employer that he or she is free to enter into
this employment arrangement with Employer and hereby warrants that the
obligations contained herein do not conflict with any other agreement with any
previous employer or independent contracting party.
12. REMEDIES:
(a) In the event of a breach or threatened
breach of this Agreement by Employee, Employer shall be entitled, in addition to
all other remedies otherwise available to Employer, to an injunction, enjoining
and restraining such breach or threatened or intended breach, and the Employee
hereby consents to the issuance thereof forthwith in any court of competent
jurisdiction without proof of specific damages.
(b) In the event that either party shall enforce
any part of this Agreement through legal proceedings and the other shall have
been in default hereof, such defaulting party agrees to pay to nondefaulting
party any costs and attorneys' fees reasonably incurred in connection therewith.
13. CUMULATIVE RIGHTS: All of the rights and
remedies of the parties hereto shall be cumulative with, and in addition to, any
other rights, remedies or causes of action allowed by law and shall not exclude
any other rights or remedies available to either of the parties hereto.
14. NOTICES: Any notice required or permitted to
be given under this Agreement shall be sufficient if in writing, and if sent by
certified mail, return receipt requested, to his residence in the case of the
Employee, or to the principal office
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in the case of the Employer.
15. WAIVER OF BREACH: The waiver by either party
of a breach of any provision of this Agreement by the other party shall not
operate or be construed as a waiver of any subsequent breach by such party.
16. GOVERNING LAW AND VENUE: The validity of
this Agreement, the construction and enforcement of its terms, and the
interpretation of the rights and duties of the parties shall be governed by the
laws of the Commonwealth of Virginia, and the venue for disputes related thereto
will be the United States District Court for the Eastern District of Virginia or
the Circuit Court of Fairfax County.
17. SEVERABILITY: In the event any one or more
of the provisions of this Agreement shall for any reason be held to be invalid,
illegal or unenforceable, the remaining provisions of this Agreement shall be
unimpaired, and shall continue in full force and effect.
18. ASSIGNMENT: The rights and obligations of
the Employee under this Agreement are not assignable. The rights and obligations
of the Employer under this Agreement inure to the benefit and shall be binding
upon the successors and assigns of the Employer.
19. SURVIVAL OF PROVISIONS: The provisions of
this Agreement set forth in paragraphs 6,7 and 11 hereof, and Employee's
representations and warranties contained herein, shall survive termination of
employment.
20. ENTIRE AGREEMENT: This instrument contains
the entire agreement of the parties with respect to employment of Employee. It
may not be changed orally, but only by agreement in writing, signed by the party
against whom enforcement of any such waiver, change, modification, extension or
discharge is sought.
21. ADVICE OF COUNSEL AND CONSTRUCTION. The
parties acknowledge that this Agreement was drafted by counsel to the Employer
who represented its interests and not Employee. All parties to this Agreement
have been represented by counsel or have had the opportunity to be so
represented. Accordingly the rule of construction of contract language against
the drafting party is hereby waived by all parties.
IN WITNESS WHEREOF, the parties have executed this agreement on the day
and year first above written.
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EMPLOYER:
ADVANCED SWITCHING COMMUNICATIONS, INC.
a Delaware corporation
By:
Name:________________________
Title:_______________________
EMPLOYEE:
By:
Name: ______________________
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