Exhibit 10.9
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EXECUTIVE EMPLOYMENT AGREEMENT
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This Employment Agreement (the "Agreement") is made as of December 21,
1999 (the "Execution Date") by and between Tellium, Inc., a Delaware corporation
(the "Company"), and Xxxxx X. Xxxx ("Executive").
WHEREAS, on the terms and conditions set forth herein, the Company
desires to employ Executive in the position of Chairman of the Board of
Directors (the "Board") and Chief Executive Officer of the Company and Executive
desires to accept such employment;
NOW, THEREFORE, in consideration of the mutual promises and agreements
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto, intending to be legally
bound, agree as follow:
1. Position; Term. The Company hereby hires Executive, and Executive
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accepts employment, as Chairman of the Board ("Chairman") and Chief Executive
Officer of the Company for a period commencing as of December 31, 1999 or as
soon as is practicable thereafter (the "Employment Date") and ending as of the
second anniversary thereof, unless Executive is earlier terminated as provided
in Section 4 hereof. The Term of this Agreement (the "Term") shall automatically
be renewed for successive one-year periods, unless either party provides the
other party written notice of its intent not to renew at least 90 days prior to
the end of such Term.
2. Duties; Powers.
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(a) Executive will report solely and directly to the Board of the
Company, will undertake and assume the responsibilities which would ordinarily
or customarily be associated with the positions of Chairman and Chief Executive
Officer with a comparable employer, will have those powers and authority
ordinarily or customarily associated with such positions, will use his
reasonable best efforts in performing, for and on behalf of and at the sole cost
and expense of the Company, during business hours (other than during absences
due to illness or vacation), and, in such positions, will comply with the
written policies of the Company and the direction of the Board. The Executive
agrees to devote his full working time to the performance of his duties with the
Company. Executive will, as part of his duties as an employee of the Company,
actively seek such opportunities and undertake such activities so as to promote
high visibility and a positive image of the Company.
(b) Notwithstanding the foregoing, from and after the Employment
Date, Executive may (i) serve on corporate, trade group, civic or charitable
boards or committees, (ii) deliver lectures, fulfill speaking engagements or
teach at educational institutions or programs, (iii) manage his personal,
financial and legal affairs, and (iv) passively invest personally in any
business in a private capacity where no actual conflict of interest exists
between such investment and the business of the Company so long as such
activities do not interfere with Executive's performance
of his obligations hereunder. The Company hereby agrees that any earnings of
Executive in connection with the permissible activities described in the
preceding sentence may be retained by Executive.
(c) For a time period not to exceed four weeks from the Employment
Date, Executive may consult with Lucent Technologies, Inc. ("Lucent") (his
former employer), in connection with the transition from his former duties and
responsibilities at Lucent. This consulting arrangement shall not be a breach of
this Agreement.
3. Compensation.
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(a) Salary. The Company agrees to pay Executive and Executive agrees
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to accept as compensation for his services, a base salary of $300,000.00 per
annum (subject to such annual increases in the base salary set in accordance
with this Section), payable in accordance with the Company's standard payroll
policy and beginning as of the Employment Date. At least annually, the Board
will consider increases in Executive's annual rate of salary in light of
Executive's individual performance and other relevant factors.
(b) Benefits. During his employment hereunder, Executive will be
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entitled to participate in the employee benefit plans maintained by the Company
to the full extent provided for under those plans. In addition, the Company
shall obtain supplemental insurance for the benefit of Executive for any
"out-of-plan" costs or other costs incurred by Executive in order to utilize the
services of the health care provider of Executive's choice, to the extent that
the costs for utilizing such provider are not covered by the applicable Company
benefit plan.
(c) Expenses. The Company will pay or reimburse Executive for
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reasonable travel, entertainment or other expenses incurred by Executive in the
furtherance of or in connection with the performance of Executive's duties
hereunder in accordance with the Company's established policies. Executive shall
furnish the Company with evidence of the incurrence of such expenses within a
reasonable period of time from the date that they were incurred.
(d) Stock Options. The parties acknowledge that, in order to induce
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Executive's execution of this Agreement, Executive has been granted (i) options
to purchase the Common Stock of the Company pursuant to the Stock Option
Agreement attached hereto as Exhibit A ( the "Option") and (ii) performance-
based options to purchase the Common Stock of the Company pursuant to the
Performance Stock Option Agreement attached hereto as Exhibit B (the
"Performance Option").
(e) Bonus. Executive shall be eligible to receive an annual bonus of
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up to 66 2/3% of his base salary under Section 3(a) in respect of each full
fiscal year during the term of employment in which the Company and the Executive
achieve the objectives mutually agreed upon by Executive and the Board of the
Company for such fiscal year. Should Executive exceed such
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objectives, the bonus payable may be increased appropriately in such amounts as
the Board determines in its sole discretion.
(f) Vacation. Executive shall be entitled to four weeks of paid
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vacation per year (in addition to the holidays during which the Company is
closed and for which Company employees are paid).
(g) Disability Insurance. If Executive is insurable, and if
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generally and regularly available, the Company shall maintain, at its cost,
supplemental renewable long-term disability insurance as agreed to by the
Company and Executive for the benefit of Executive, which insurance shall
provide benefits not less than 100% of Executive's base salary at the time of
the disability for the duration of Executive's disability.
(h) Rental Residence. The Company shall provide, at its cost,
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Executive and his family with a furnished residence, acceptable to Executive (in
Executive's sole discretion) and located near the Company's principal place of
business, for the use of Executive and his family during the Term. The Company
estimates that the expected monthly cost of such residence is approximately
$1,500 per month.
(i) Additional Compensation. The Company may pay to (or grant)
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Executive any and all additional compensation (including, without limitation,
cash bonus or deferred compensation programs, stock options or restricted stock)
that it deems relevant and appropriate to reflect Executive's performance.
4. Termination.
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(a) Termination upon Death. If Executive dies during the Term, this
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Agreement shall terminate, subject to Sections 5, 7, 8, 11, 12 and 15, as of the
date of his death.
(b) Termination upon Disability. If during the Term Executive
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becomes physically or mentally disabled, whether totally or partially, so that
Executive is unable to perform his essential job functions hereunder for: (i) a
period of 135 consecutive days; or (ii) for shorter periods aggregating 180 days
during any twelve-month period, the Company may, by written notice to Executive,
terminate this Agreement, subject to Sections 5, 6, 7, 8, 11, 12, 14 and 15, in
which event the Term shall terminate 10 days after the date upon which the
Company shall have given notice to Executive of its intention to terminate this
Agreement because of the disability. Nothing in this Section 4(b) shall be
deemed to extend the Term.
(c) Termination.
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(i) The Company may terminate this Agreement at any time with or
without cause upon 30 days' written notice by the Company to Executive (subject
to Sections 5, 6,
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7, 8, 11, 12, 14 and 15 hereof). The Company's failure to renew this Agreement
under Section 1 shall be considered a termination of this Agreement by the
Company pursuant to this Section 4(c)(i).
(ii) Executive may terminate this Agreement, subject to Sections
5, 6, 7, 8, 11, 12, 14 and 15, effective immediately by written notice to the
Company given within six (6) months after the occurrence of any of the following
events without Executive's written consent:
(A) The nature of Executive's title, position, duties,
powers and authority, reporting relationship, or the
scope of his responsibilities, are adversely modified
without Executive's written consent;
(B) The occurrence of a Change in Control as defined in
Section 7 of this Agreement;
(C) This Agreement is not assumed by any successor to the
Company pursuant to Section 15(a) hereof in a situation
other than a Change in Control; or
(D) A material breach of this Agreement by the Company
which breach remains uncured for 14 days from the date
that the notice of breach is received by the Company
from Executive.
(d) Termination Upon Voluntary Resignation. Executive may terminate
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this Agreement, subject to Sections 6, 12 and 15, at any time after the
Employment Date by giving written notice to the Company at least 30 days prior
to the effective termination date stated in such notice. Executive's failure to
renew this agreement under Section 1 shall not be considered a voluntary
resignation.
5. Severance Payments.
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(a) Certain Severance Payments. If during the Term this Agreement is
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terminated pursuant to Section 4(c) (i) or (ii) hereof, all compensation payable
to Executive under Section 3 hereof shall cease as of the date of termination
specified in the Company's or Executive's notice, as the case may be (the
"Termination Date"), and the Company shall pay to Executive, subject to Section
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6 hereof, the following sums and benefits: (i) the Base Salary on the
Termination Date for one year (the "Severance Period"), payable ratably over the
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Severance Period in accordance with the Company's standard payroll policy; (ii)
any unpaid bonus earned under Section 3(e) with respect to all prior years in
one lump sum; (iii) the unpaid bonus under Section 3(e) for that portion of the
year in which termination occurs, which bonus calculated under this clause (iii)
shall be no less than the prorata portion (based upon the portion of the year
during which employment continued as compared to the entire year) of the greater
of the bonus earned by
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Executive in the immediately prior year or the target bonus payable under
Section 3(e) for such year calculated on the basis that Executive had achieved
the mutually agreed upon objectives for such year, payable in one lump sum; (iv)
benefits under group health and life insurance plans in which Executive
participated prior to termination through the Severance Period; (v) all
previously earned, accrued, and unpaid benefits from the Company and its
employee benefit plans, including, without limitation, any such benefits under
the Company's pension, disability, and life insurance plans, policies, and
programs; (vi) expenses reimbursable under Section 3(c); (vii) all previously
earned, accrued, and unpaid compensation and benefits, if any, under Section
3(i); and (viii) if Executive is residing in a rental residence pursuant to
Section 3(h), a continuation of the Company's payment responsibilities thereto
pursuant to Section 3(h) for a period no less than 3 months. If, prior to the
end of the Severance Period, Executive violates Section 6 hereof, then the
Company shall have no obligation to make any of the payments that remain payable
by the Company under clauses (i) and (iii) of this Section 5(a) on or after the
date of such violation. Amounts payable under this Section 5(a) shall be payable
within 10 days of the Termination Date, with the exception of the amounts
payable ratably under Section 5(a)(i).
(b) Severance Payments Upon Other Termination Events. If this
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Agreement is terminated by the Company pursuant to Sections 4(a) or 4(b) hereof,
Executive shall receive the sums and benefits specified in clauses (ii), (iii),
(iv), (v), (vi), (vii) (if applicable), and (viii) (if applicable) of Section
5(a) hereof. In addition to these amounts, if the Agreement is terminated
pursuant to Sections 4(a) or 4(b), Executive shall receive his then-current
salary through the last day of the month of his death or the last day of the
month in which Executive is terminated due to disability in one lump sum
payment, plus any accrued but unpaid vacation pay through the last day of the
month in which Executive's death or notification of termination due to
disability occurs. If this Agreement is terminated by Executive pursuant to
Section 4(d), Executive shall receive the amounts specified in clauses (ii),
(iv) (only with regard to amounts incurred prior to the Termination Date), (v),
(vi) and (vii) of Section 5(a) hereof and the salary due and payable to him as
of the date of termination. Amounts payable under this Section 5(b) shall be
payable within 10 days of the Termination Date.
6. Non-Compete.
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(a) During the Term and for a period of one (1) year thereafter (the
"Non-Compete Period"), Executive shall not (i) directly or indirectly through
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another person or entity induce or attempt to induce any employee of the Company
to leave the employ of the Company, or in any way interfere with the
relationship between the Company, on the one hand, and any employee thereof, on
the other hand, (ii) directly and indirectly hire any person who was an employee
of the Company until six months after such individual's employment relationship
with the Company has been terminated, or (iii) directly or indirectly through
another person or entity induce or attempt to induce any customer, supplier,
subcontractor, licensee or other business relation of the Company to cease doing
business with the Company, or in any way interfere with
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the relationship between any such customer, supplier, subcontractor, licensee or
business relation, on the one hand, and the Company, on the other hand.
(b) The Executive understands that the foregoing restrictions may
limit his ability to earn a livelihood in a business similar to the business of
the Company, but he nevertheless believes that he has received and will receive
sufficient consideration and other benefits as an employee of the Company and as
otherwise provided hereunder to clearly justify such restrictions which, in any
event (given his education, skills and ability), the Executive does not believe
would prevent him from otherwise earning a living.
(c) 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, 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 Executive. For purposes of this Section 6(d), (i) the term "Confidential
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Information" shall mean all information respecting the business and activities
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of the Company, including, without 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"
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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).
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7. Change of Control.
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(a) In the event that any payment or benefit (within the meaning of
Section 280G of the Internal Revenue Code) that is provided for hereunder to be
paid to or for the benefit of Executive or payments or benefits under any other
plan, agreement or arrangement between Executive and the Company (including,
without limitation, the Option and the Performance Option) (a "Payment" or
"Payments"), is determined or alleged to be subject to an excise or similar
purpose tax pursuant to Section 4999 of the Code or any successor or other
comparable federal, state, or local tax laws or any interest or penalties
incurred by Executive with respect to such excise or similar purpose tax (such
excise tax, together with any such interest and penalties, hereinafter
collectively referred to as the "Excise Tax"), the Company shall pay to
Executive such additional compensation as is necessary to place Executive in the
same after-tax position he would have been in had no such Excise Tax been paid
or incurred (taking into account any federal, state and local income taxes or
Excise Tax, payable by Executive as a result of the receipt of such additional
compensation) (a "Gross-Up Payment").
(b) Notwithstanding anything herein to the contrary, this Section 7
shall survive any termination under this Agreement.
8. Enforcement.
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(a) Because Executive's services are unique and because Executive
has access to confidential information and work product, the parties hereto
agree that money damages would be an inadequate remedy for any breach of this
Agreement. Therefore, in the event of a breach or threatened breach of this
Agreement, the Company or its successors or assigns may, in addition to other
rights and remedies existing in their favor at law or in equity, apply to any
court of competent jurisdiction for specific performance and/or injunctive or
other relief in order to enforce, or prevent any violations of, the provisions
hereof (without posting a bond or other security) or require Executive to
account for and pay over to the Company all compensation, profits, moneys,
accruals, increments or other benefits derived from or received as a result of
any transactions constituting a breach of the covenants contained herein in this
Agreement, if and when final judgment of a court of competent jurisdiction is so
entered against Executive.
(b) Executive shall have an equivalent right to apply to any court
of competent jurisdiction for specific performance and/or injunctive or other
relief in order to enforce, or prevent any violations of, the provisions hereof.
9. Insurance. The Company may, for its own benefit, maintain "keyman"
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life and disability insurance policies covering Executive. Executive will
cooperate with the Company and provide such information or other assistance as
the Company may reasonably request in connection with the Company obtaining and
maintaining such policies.
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10. Representations and Warranties.
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(a) Executive hereby represents and warrants to the Company that (i)
the execution, delivery and performance of this Agreement by Executive does not
and will not conflict with, breach, violate or cause a default under any other
agreement, contract or instrument to which Executive is a party or any judgment,
order or decree to which Executive is subject, (ii) Executive is not a party to
or bound by any other employment agreement, consulting agreement, non-compete
agreement, confidentiality agreement or similar agreement with any other person
or entity other than the Retention Agreement and the Non-Competition and Non-
Disclosure Agreement, each dated as of April 27, 1998, (copies of which are
attached hereto as Exhibits D and E) (collectively the "Lucent Agreements") and
(iii) upon the execution and delivery of this Agreement by the Company and
Executive, this Agreement will be a valid and binding obligation of Executive,
enforceable in accordance with its terms.
(b) The Company hereby represents and warrants to Executive that (i)
it has the requisite authority and corporate power to enter into this Agreement,
the Option and the Performance Option, (ii) the execution and delivery of this
Agreement, the Option and the Performance Option have been duly authorized by
the Board and by shareholder action, and (iii) this Agreement, the Option and
the Performance Option constitute a valid and binding obligation of the Company
enforceable in accordance with their respective terms (except to the extent
enforceability may be limited by the application of bankruptcy, insolvency, and
other similar laws affecting creditors' rights generally).
(c) Each of the parties hereto have read the Lucent Agreements and
agree that the execution, delivery and performance of this Agreement does not
constitute a breach of either Section 2 of the aforementioned Non Competition
and Non-Disclosure Agreement or the above-referenced Retention Agreement.
11. Directors' and Officers' Liability Insurance. Within ninety days
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following the Execution Date, the Company shall obtain and maintain Directors'
and Officers' liability insurance for the benefit of Executive (and other
executives of the Company). After Executive is no longer employed by the
Company, for three (3) years following the date of termination of Executive's
employment, the Company shall provide Executive with Director's and Officers'
liability insurance coverage for events occurring prior to the termination of
Executive's employment that is no less favorable than the Company's Directors'
and Officers' liability insurance policy in effect on the date first written
above in terms of coverage and amounts.
12. Indemnification.
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(a) General. The Company agrees that if Executive is made a party or
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threatened to be made a party to any action, suit or proceeding, whether civil,
criminal, administrative or investigative (a "Proceeding"), by reason of the
fact that Executive is or was a
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director or officer of the Company or any subsidiary thereof or is or was
serving at the request of the Company or any subsidiary thereof as a director,
officer, member, employee or agent of another corporation or a partnership,
joint venture, trust or other enterprise, including, without limitation, service
with respect to employee benefit plans, whether or not the basis of such
Proceeding is alleged action in an official capacity as a director, officer,
member, employee or agent while serving as a trustee, director, officer, member,
employee or agent, Executive shall be indemnified and held harmless by the
Company to the fullest extent authorized by Delaware law, as the same exists or
may hereafter be amended, against all Expenses (as hereinafter defined) incurred
or suffered by Executive in connection therewith, and such indemnification shall
continue as to Executive even if Executive has ceased to be an officer,
director, trustee or agent, or is no longer employed by the Company and shall
inure to the benefit of his heirs, executors and administrators. Notwithstanding
the provisions of this Section 12, the Executive shall not be entitled to
indemnification if (i) the Company is prohibited from paying such
indemnification under applicable law, (ii) the Executive breached his duty of
loyalty to the Company or its stockholders, (iii) the Executive's actions or
omissions were not in good faith or involved intentional misconduct or a knowing
violation of law or (iv) the Executive derived an improper personal benefit from
any transaction which is a subject of the applicable Proceeding (any existence
or occurrence described in the foregoing clauses (i)-(iv), individually, a
"Culpable Action"). The existence or occurrence of a Culpable Action shall be
conclusively determined by (i) a non-appealable, final decision of the court
having jurisdiction over the applicable Proceeding or (ii) a non-appealable,
final decision of the Court of the Chancery of the State of Delaware (or if such
a decision is appealable, by the court in such State which has jurisdiction to
render a non-appealable, final decision). Such determination shall be final and
binding upon the parties hereto.
(b) Expenses. As used in this Agreement, the term "Expenses" shall
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include, without limitation, damages, losses, judgments, liabilities, fines,
penalties, excise taxes, settlements, costs, attorneys' fees, accountants'
investigations, and any expenses of establishing a right to indemnification
under this Agreement.
(c) Enforcement. If a claim or request under this Agreement is not paid
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by the Company or on its behalf, within thirty (30) days after a written claim
or request has been received by the Company, Executive may at any time
thereafter bring suit against the Company to recover the unpaid amount of the
claim or request and if successful in whole or in part, Executive shall be
entitled to be paid also the expenses of prosecuting such suit. All obligations
for indemnification hereunder shall be subject to, and paid in accordance with,
applicable Delaware law.
(d) Partial Indemnification. If Executive is entitled under any provision
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of this Agreement to indemnification by the Company for some or a portion of any
Expenses, but not, however, for the total amount thereof, the Company shall
nevertheless indemnify Executive for the portion of such Expenses to which
Executive is entitled.
(e) Advances of Expenses. Expenses incurred by Executive in connection
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with
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any Proceeding shall be paid by the Company in advance upon request of Executive
that the Company pay such Expenses and upon Executive's delivery of an
undertaking to reimburse the Company for Expenses with respect to which
Executive is not entitled to indemnification.
(f) Notice of Claim. Executive shall give to the Company notice of any
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claim made against him for which indemnification will or could be sought under
this Agreement, but the failure of Executive to give such notice shall not
relieve the Company of any liability the Company may have to Executive except to
the extent that the Company is prejudiced thereby. In addition, Executive shall
give the Company such information and cooperation as it may reasonably require
and as shall be within Executive's power and at such time and places as are
convenient for Executive.
(g) Defense of Claim. With respect to any Proceeding as to which
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Executive notifies the Company of the commencement thereof;
(i) the Company shall be entitled to participate therein at its own
expense; and
(ii) Except as otherwise provided below, to the extent that it may
wish, the Company will be entitled to assume the defense thereof, with counsel
reasonably satisfactory to Executive. Executive also shall have the right to
employ his own counsel in such action, suit or proceeding if he reasonably
concludes that failure to do so would involve a conflict of interest between the
Company and Executive, and under such circumstances the fees and expenses of
such counsel shall be at the expense of the Company.
(iii) the Company shall not be liable to indemnify Executive under
this Agreement for any amounts paid in settlement of any action or claim
effected without its written consent. The Company shall not settle any action or
claim in any manner which would not include a full and unconditional release of
Executive without Executive's prior written consent. Neither the Company nor
Executive will unreasonably withhold or delay their consent to any proposed
settlement.
(h) Non-exclusivity. The right to indemnification and the payment of
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Expenses incurred in defending a Proceeding in advance of its final disposition
conferred in this Agreement shall not be exclusive of any other right which
Executive may have or hereafter may acquire under any statute, provision of the
declaration of trust or certificate of incorporation or by-laws of the Company
or any subsidiary, agreement, vote of shareholders or disinterested directors or
trustees or otherwise.
13. Withholding. All amounts payable to Executive under this Agreement shall be
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subject to applicable withholding by the Company for taxes payable by Executive.
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14. Mitigation. Executive shall not be required to mitigate the amount of
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any payment, benefit, or other Company obligation provided for in this Agreement
by seeking other employment or otherwise and no such payment, benefit or other
Company obligation shall be offset or reduced by the amount of any compensation
or benefits provided to Executive in any subsequent employment.
15. Miscellaneous.
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(a) Successors; Binding Agreement.
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(i) This Agreement shall be binding upon and shall inure to
the benefit of the Company. The Company shall require its successors and
assigns, by agreement in form and substance reasonably satisfactory to
Executive, 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 it
if no such succession or assignment had taken place.
(ii) Neither this Agreement nor any right or interest
hereunder shall be assignable or transferable by Executive, his beneficiaries or
legal representatives, except by will or by the laws of descent and
distribution. This Agreement shall inure to the benefit of and be enforceable by
Executive's legal personal representative.
(b) Entire Agreement; Amendment. Together with the Option and the
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Performance Option, this Agreement contains the entire agreement of the parties,
and may not be changed orally, but only by a subsequent writing signed by the
party against whom enforcement of such change is sought.
(c) Prior Agreements; Waiver. This Agreement supersedes any and all
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prior discussions or agreements between the parties, whether oral or in writing,
related to the subject matter hereof. It is agreed that a waiver by either party
of a breach of any provision of this Agreement shall not operate or be construed
as a waiver of any subsequent breach by the same party.
(d) Severability. Without in any way limiting the provisions of
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Section 6, in case one or more of the provisions contained in this Agreement
shall be held to be invalid, illegal or unenforceable in any respect for any
reason, such invalidity, illegality or unenforceability shall not affect any
other provision of this Agreement but such provisions shall be deemed deleted
and such deletion shall not affect the validity of any other provision of this
Agreement.
(e) Governing Law. This Agreement shall governed by and construed
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according to the internal laws of the State of New Jersey, without regard to any
applicable conflicts of law principles. The federal and state courts of the
State of New Jersey shall have exclusive jurisdiction to adjudicate any dispute
rising out of this Agreement.
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(f) Jurisdiction and Venue.
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(i) The Company and Executive hereby irrevocably and
unconditionally submit, for themselves and their property, to the non-exclusive
jurisdiction of any New Jersey State court or federal court of the United States
of America sitting in New Jersey, and any appellate court from any thereof, in
any action or proceeding arising out of or relating to this Agreement or for
recognition or enforcement of any judgment, and the Company and Executive hereby
irrevocably and unconditionally agree that all claims in respect of any such
action or proceeding may be heard and determined in any such New Jersey State
court or, to the extent permitted by law, in such federal court. The Company and
Executive agree that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law.
(ii) The Company and Executive irrevocably and
unconditionally waive, to the fullest extent they may legally and effectively do
so, any objection that they may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement in
any New Jersey State or federal court sitting in New Jersey. The Company and
Executive irrevocably waive, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any
such court.
(iii) Notwithstanding clauses (i) and (ii) of this Section
15(f), the parties intend to and hereby confer jurisdiction to enforce the
covenants contained in Section 6 upon the courts of any jurisdiction within the
geographical scope of such covenants. If the courts of any one or more of such
jurisdictions hold such covenants wholly or partially invalid or unenforceable
by reason of the breadth of such scope or otherwise, it is the intention of the
parties that such determination not bar or in any way affect the Company's right
to the relief provided above in the courts of any other jurisdiction within the
geographical scope of such covenants, as to breaches of such covenants in such
other respective jurisdictions, such covenants as they relate to each
jurisdiction being, for this purpose, severable into diverse and independent
covenants.
(iv) The Company and Executive further agree that the mailing
by certified or registered mail, return receipt requested, of any process
required by any such court shall constitute valid and lawful service of process
against them, without the necessity for service by any other means provided by
law.
(g) Counterparts. This Agreement may be signed in counterparts
------------
which together will constitute one instrument.
(h) Legal Fees and Expenses. Upon receipt of reasonable written
-----------------------
evidence, the Company shall reimburse Executive promptly following the date
first written above for all reasonable legal fees (and expenses of counsel)
incurred by Executive in connection with (i) the Company and Executive entering
into this Agreement, the Option, the Performance Option and any
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other agreements contemplated hereby and (ii) Executive's termination of the
Lucent Agreements.
(i) Notices. Any notice required or permitted to be given under
-------
this Agreement, the Option or the Performance Option shall be in writing and
shall be deemed to have been given when delivered in person or when deposited in
the U.S. mail, registered or certified, postage prepaid, and mailed to the
respective addresses set forth herein, unless a party changes its address for
receiving notices by giving notice in accordance with this Section 15(i), in
which case, to the address specified in such notice.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
TELLIUM, INC. Executive:
By: /s/ Xxxxxxx X. Xxxxxx /s/ Xxxxx X. Xxxx
--------------------- -----------------
Name: Xxxxxxx X. Xxxxxx Xxxxx X. Xxxx
Title: President
Address: Address:
0 Xxxxxxxx Xxxxx Xxx Xxxxx Xxxx Xxxxx
X.X. Xxx 000 Xxxxxxxxxxxxx, XX 00000
Xxxxxxxxx, XX 00000-0000
211758v5
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