EMPLOYMENT AGREEMENT
THIS AGREEMENT, made as of this 11th day of September, 1995,
by and between SATTEL COMMUNICATIONS COMPANY, a general partnership
(the "Company"), and XXXXX X. XXXXXXX (the "Executive").
R E C I T A L S
WHEREAS, Executive is willing to be employed by Company upon
the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in order to set forth the terms and conditions
of Executive's employment with Company and in consideration of the
covenants and agreements of the parties herein contained, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Employment Services. Subject to the terms and upon the
conditions hereinafter set forth, Company hereby employs Executive
to serve in such position or positions as company's Executive
Committee or similar controlling body (the "Committee") shall
determine from time to time and to perform all duties incident
thereto. Executive's title and duties may change from time to time
as determined by the committee in its sole discretion. Executive
shall perform all duties in a conscientious, reasonable and
competent manner and shall devote his best efforts and his entire
business time and attention to the performance of such duties.
Executive accepts such employment and agrees to devote his full
time and use his best efforts to perform his duties pursuant to
this Agreement and to further the business of the Company.
Executive shall not, without the prior written consent of Company,
engage directly or indirectly in any other business or occupation
during his employment under this Agreement.
2. Term and Termination.
2.1 Term. Subject to Section 2.2 hereof, the employment of
Executive under this Agreement will continue until the occurrence
of the first of the following:
(a) December 31, 1996
(b) Executive's death; or
(c) Executive's illness, physical or mental disability
or other incapacity resulting in Executive's inability to
effectively perform his duties under this Agreement for an
aggregate of thirty (30) days during any period of six (6)
consecutive months.
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2.2 Termination. The employment of Executive under this
Agreement may also be terminated at the option of the Committee
upon the occurrence of any of the following:
(a) Executive's conduct involving fraud or moral
turpitude or Executive's dishonesty involving Company's business,
(b) Executive's chronic absence from work other than by
reason of illness or injury,
(c) conviction of any felony,
(d) Executive's conviction of any misdemeanor which is
substantially related to Executive's services hereunder,
(e) Executive's continuing use of illegal drugs or other
illegal substance (whether or not on the job) after receiving a
written notice from the Company to halt such usage or Executive's
conviction of a crime involving illegal drugs or other illegal
substance,
(f) Executive's continuing use of alcohol (whether or
not on the job) after receiving a written notice from the Company
to halt such usage or Executive's conviction of a crime involving
alcohol, which impairs Executive's ability to perform Executive's
duties under this Agreement or has an adverse effect (other than an
insignificant effect) on the reputation of the Company or its
relationship with any customer or supplier of the Company,
(g) conduct either within or outside the scope of
Executive's employment which has an adverse effect (other than an
insignificant effect) on the reputation of the Company or its
relationship with any customer or supplier of the Company,
(h) Executive's making of any statement, publicly or
privately, about the Company, any executive of the Company, any
supplier or customer of the Company, which in the sole judgment of
committee is detrimental to the Company,
(i) a breach by Executive of his obligations under
Sections 7, 8 or 9 hereof, or
(j) a breach of any other provision of this Agreement by
Executive.
2.3 Effect of Termination. Executive's obligations in
Section 7, 8, 9 and 10 hereof shall survive the termination of
Executive's employment hereunder for any reason.
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3. Salary. As compensation for his services hereunder and
in consideration of the covenants of Executive herein, Executive
shall be entitled to a salary at a rate of Two Hundred Thousand
Dollars ($200,000) per year or any proration thereof. Such salary
to be paid in equal semi-monthly installments or with such other
frequency as Company shall elect (but not less frequently than
semi-monthly) and shall be subject to withholding and other
deductions by reason of federal or state law.
4. Reimbursement For Expenses. Company agrees to reimburse
Executive for all reasonable business expenses incurred by him in
connection with the performance of his obligations under this
Agreement, subject to established reimbursement policies of the
Company in effect from time to time regarding expense
reimbursement.
5. Fringe Benefits. Executive shall be entitled to the
following fringe benefits during the term of his employment under
this Agreement.
5.1 Vacation. Executive shall be allowed three (3) weeks of
vacation per year, with full pay and without loss of any other
compensation of benefits, during the term of this Agreement.
Executive shall coordinate the schedule of his vacations with other
executives and the personnel of Company and it partners and
affiliates so as to avoid any adverse effects on the Company's
operations.
5.2 Bonuses. At the conclusion of each of the Company's
calendar years covered by this contract, the Executive shall
receive a bonus equal to 10% of the Company's pre-tax profits for
said year not to exceed the amount of salary received in said
calendar year.
5.3 Other Fringe Benefits. Executive may receive such other
fringe benefits, if any, as the Committee may from time to time
make available to Executive in the Committee's sole discretion.
6. Definitions. As used in this Agreement, the following
words have the meanings specified:
(a) "Proprietary Ideas" means ideas, suggestions,
inventions and work relating in any way to the business and
activities of Company which may be subjects of protection under
applicable laws, including common law, respecting patents,
copyrights, tradesecrets, trademarks, service marks or other
intellectual property rights.
(b) "Invention" means inventions, designs, discoveries,
improvements and ideas, whether or not patentable, including
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without limitation, upon the generality of the foregoing, novel or
improved products, processes, machines, software, promotional and
advertising materials, business data processing programs and
systems, and other manufacturing and sales techniques, which either
(a) relate to (i) the business of Company as conducted from time to
time or (ii) the Company's actual or demonstrably anticipated
research or development, or (b) result from any work performed by
Executive for Company.
(c) "Confidential Information" means Proprietary Ideas
and also information related to Company's business, whether or not
in written or printed form, not generally known in the trade or
industry of which Executive has or will become informed during the
period of employment by Xxxxx or Company, which may include but is
not limited to product specifications, manufacturing procedures,
methods, equipment, compositions, technology, formulas, trade
secrets, know-how, research and development programs, sales
methods, customer lists, mailing lists, customer usages and
requirements, software and other confidential technical or business
information and data; provided, however, that Confidential
Information shall not include any information which is in the
public domain by means other than disclosure by Executive.
(d) As used in Paragraph 7, 8, 9 and 10 only, the term
"Company" shall include all entities affiliated with the Company.
7. Disclosure and Assignment of Inventions. Executive
agrees to disclose to Company, and hereby assigns to Company all of
Executive's rights in and, if requested to do so, provide a written
description of, any Inventions conceived or reduced to practice at
any time during Executive's employment by Company, either solely or
jointly with others and whether or not developed on Executive's own
time or with Company's resources. Executive agrees that Inventions
first reduced to practice within one (1) year after termination of
Executive's employment by Company shall be treated as if conceived
during such employment unless Executive can establish specific
events giving rise to the conception which Occurred after such
employment. Further, Executive disclaims and will not assert any
rights in Inventions as having been made, conceived or acquired
prior to employment by Company except such as are specifically
listed at the conclusion of this Agreement. Executive shall
cooperate with Company and shall execute and deliver such documents
and do such other acts and things as Company may request, at
Company's expense, to obtain and maintain letters patent or
registrations covering any Inventions and to vest in Company all
rights therein free of all encumbrances and adverse claims.
8. Confidential Information. Executive shall not disclose
to Company or induce Company to use any secret or confidential
information belonging to persons not affiliated with Company,
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including any former employer of Executive. In addition to all
duties of loyalty imposed on Executive by law, Executive shall
maintain Confidential Information in strict confidence and secrecy
and shall not at any time, during or at any time after termination
of employment with Company, directly or indirectly, use or disclose
to others any Confidential Information, or use it for the benefit
of any person or entity (including Executive) other than Company,
without the prior written consent of any authorized officer of
company (except for disclosures to persons acting on Company's
behalf with a need to know such information). Executive shall
carefully preserve any documents, records, tangible data relating
to Inventions or Confidential Information coming into Executive's
possession and shall deliver the same and any copies thereof to
Company upon request and, in any event, upon termination of
Executive's employment by Company.
9. Non-Competition.
At all, times during Executive's employment by the
Company (whether pursuant to this Agreement or otherwise) and for
a period of twelve (12) months following the termination of such
employment:
(a) Executive will not, in any capacity whatsoever, in
any state in the United States or in any other country, directly or
indirectly, participate in or assist in, the ownership management,
operation or control, or have any beneficial interest in, or
provide employment, consulting or other services for, any
corporation, partnership, association or other person or entity
("Competitive Business") which is engaged in the development,
manufacture, marketing, distribution, service and/or sale of
products incorporating technology by which fax, voice and data
traffic can be transmitted by means of T1 and other similar
transmission cables and which directly competes or is planning to
directly compete with the Company's products or services (including
products and services under development). If the business is
multi-faceted, this restriction shall apply to only that part of
the business which is competitive to Company.
(b) In furtherance of the foregoing, but as an
independent obligation of Executive, Executive agrees that he will
not, during the 1-year period following termination of his
employment with Company, be connected in any way with the
solicitation of any then current or potential customers or
suppliers of Company if such solicitation is likely to result in a
loss of business for Company.
(c) In furtherance of the foregoing, but as an
independent obligation of the Executive, Executive agrees that he
will not solicit for employment, employ or engage as a consultant
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any person who had been an employee of the Company at any time in
the two year period prior to termination of employment with
Company.
(d) In the event the covenants set forth in this Section
9 are found to be unenforceable or invalid by reason of being
overly broad, the parties hereto intend that such covenants shall
be limited to such scope, geographic area and duration as shall
make such covenants valid and enforceable.
10. Enforcement of Section 7, 8 and 9. Recognizing that
compliance with the provisions of Sections 7, 8 and 9 of this
Agreement is necessary to protect the goodwill and other
proprietary interests of Company, and that breach of Executive's
agreements thereunder will result in irreparable and continuing
damages to Company for which there will be no adequate remedy at
law, Executive hereby agrees that in the event of any breach of
such agreements, Company shall be entitled to injunctive relief and
such other and further relief, including damages, as may be proper.
11. Government Laws Regulations and Contracts. Executive
agrees to comply, and to do all things necessary for Company to
comply, with all federal, state, local and foreign laws and
regulations which may be applicable to the business and operations
of Company, and with any contractual obligations, including,
without limitation, confidentiality obligations, which may be
applicable to Company or Executive under any contracts between
Company and its customers, suppliers or third parties.
12. Miscellaneous.
12.1 Amendment and Modification. Company (by action of its
Committee) and Executive may amend, modify and supplement this
Agreement only in such manner as may be agreed upon by Company and
Executive in writing.
12.2 Entire Agreement. This instrument embodies the entire
agreement between the parties hereto with respect to the employment
relationship created hereby and supersedes and discharges any prior
agreements pertaining to employment between Executive and the
Company. There have been and are no agreements, representations or
warranties between the parties other than those set forth or
provided for herein relating to such employment relationship.
12.3 Assignment. This Agreement shall not be assigned by
Executive without the written consent of Company. Any
attempted assignment without such written consent shall be null and
void and without legal effect. This Agreement may be assigned by
Company and any such assignment shall not terminate or modify this
Agreement, except that the employing party to which Executive shall
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have been transferred shall, for the purposes of this Agreement, be
construed as standing in the same place and stead as Company as of
the date of the assignment.
12.4 Binding. Subject to Section 12.2 hereof, this Agreement
shall be binding upon and inure to the benefit of the respective
parties hereto and their successors, assigns, heirs, executors,
administrators and personal representatives. The parties hereto
shall be entitled, at their option, to the remedy of specific
performance to enforce any of the provisions of this Agreement.
12.5 Arbitration. Any dispute, controversy or claim arising
out of or relating to this Agreement, or the breach hereof, shall
be settled by binding arbitration in Las Vegas, Nevada administered
by the American Arbitration Association under its Commercial
Arbitration Rules, and judgment on the award rendered by the
arbitrators may be entered in any court having jurisdiction
thereof.
12.6 Agreement Severable; Waiver. This is a severable
Agreement and in the event that any part of this Agreement shall be
held to be unenforceable, all other parts of this Agreement shall
remain valid and fully enforceable as if the unenforceable part or
parts had not been included herein. No waiver of any provision of
this Agreement shall be binding unless executed in writing by the
party to be bound thereby. No waiver of a breach of any of the
provisions of this Agreement shall be deemed to be or shall
constitute a waiver of a breach of any other provision of this
Agreement, whether or not similar, nor shall such waiver constitute
a continuing waiver of such breach unless otherwise expressly
provided. No failure or delay in exercising any right, power or
remedy hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right, power or remedy
preclude any other or further exercise thereof or the exercise of
any other right, power or remedy.
12.7 Notices. For purposes of this Agreement, notices and all
other communications provided for in the Agreement shall be in
writing and shall be deemed to have been duly given when delivered
or mailed by United States certified or registered mail, return
receipt requested, postage prepaid, addressed as follows:
If to Executive, to: Xxxxx X. Xxxxxxx
0000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
If to Company, to: Sattel Communications Company
Attn: Xxxxxx Xxxxxxxxxx
0000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
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or to such other address as either party may have furnished to the
other in writing in accordance herewith except that notices of a
change of address shall be effective only upon receipt.
EXECUTIVE ACKNOWLEDGES HAVING READ, EXECUTED AND RECEIVED A
COPY OF THIS AGREEMENT, INCLUDING THE FOLLOWING NOTICE, AND AGREES
THAT, WITH RESPECT TO THE SUBJECT MATTER HEREOF, IT CONSTITUTES
EXECUTIVE'S ENTIRE AGREEMENT WITH COMPANY, SUPERSEDING ANY PREVIOUS
ORAL OR WRITTEN COMMUNICATIONS, REPRESENTATIONS, UNDERSTANDINGS OR
AGREEMENTS WITH XXXXX, COMPANY OR ANY OF THEIR OFFICIALS OR
REPRESENTATIVES.
Notwithstanding anything to the contrary in Section 7 hereof,
this Agreement does not apply to an Invention for which no
equipment, supplies, facility, or trade secret information of the
Company was used and which was developed entirely on Executive's
own time, unless (a) the Invention relates (i) to the business of
the Company as conducted from time to time or (ii) to the Company's
actual or demonstrably anticipated research or development, or (b)
the Invention results from any work performed by the Executive for
the Company.
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IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed as of the day and year first above written.
SATTEL COMMUNICATIONS COMPANY
("Company")
By: /s/ Xxxxx X. Xxxxxxx
Chief Financial Officer
/s/ Xxxxx X. Xxxxxxx
("Executive")
(SEAL)
List of Inventions Excepted From Section 7 Above:
None
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