EXECUTIVE EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is effective as of September 30,
1996, between Digital Lightwave, Inc., a Delaware corporation (the "Company"),
and Xxxx X. Xxxxxx (the "Employee").
RECITALS
The Company desires to employ Employee and Employee desires to accept such
employment in an executive capacity as Senior Executive Vice President, in
accordance with the terms and conditions set forth below.
AGREEMENTS
In consideration of the mutual covenants contained herein, and for other
good and valuable consideration, receipt of which is acknowledged by the
parties, the Company and the Employee agree as follows:
1. TERM OF EMPLOYMENT: The Company employs Employee and Employee accepts
employment with the Company for a period of five years beginning on the
effective date of this Agreement as set forth above ("Initial Employment
Term"). This Agreement shall be renewed automatically for an additional
five year period on the fifth anniversary date hereof unless the Company's
Board of Directors notifies Employee in writing or Employee notifies the
Company's Board of Directors in writing that such renewal shall not take
place. Said notice shall be given not less than one hundred eighty (180)
days prior to end of the Initial Employment Term.
In the event of any extension of this Agreement, the terms of this
Agreement shall be deemed to continue in effect for the term of such
extension ("Extended Employment Term"). The Initial Employment Term and the
Extended Employment Term will be collectively referred to as the
"Employment Term."
2. DUTIES OF EMPLOYEE: Employee shall serve as a member of the Board of
Directors, the Executive Committee thereof and as Senior Executive Vice
President of the Company throughout the Employment Term. In his capacity
as Senior Executive Vice President, Employee shall supervise and have
authority over the legal, financial reporting (including the accounting
included therewith), investor relations and merger and acquisitions
functions of the Company and shall perform such other duties within his
experience or professional competence as may be delegated to him from time
to time by the Chief Executive Officer of the Company to whom he shall
report directly. The Employee shall be expected to manage in alignment
with the goals, procedures and objectives as set forth by the Chief
Executive Officer.
3. EXCLUSIVE SERVICES: Employee's services shall be exclusive to the Company,
and Employee shall devote such portion of his productive time and
attention to the business of the Company as shall be reasonably necessary
to carry out his duties during the Employment Term. Employee shall not
engage in any other businesses, duties or pursuits whatsoever, or directly
or indirectly render any service of a business, commercial or professional
nature to
any other person or organization whether for compensation or otherwise
unless such activity is fully disclosed to and approved by the Company's
Chief Executive Officer. Subject to Section 4.B hereof, this Agreement
shall not be interpreted to prohibit Employee from making passive personal
investments or conducting private business affairs if such activities do
not materially interfere with the services required under this Agreement.
4. NON-COMPETITION: To induce the Company to enter into this Agreement,
Employee agrees that:
A. DEFINED TERMS: The principal business of the Company is the design,
manufacturing and sale of network equipment and software (the
"Business"). The region serviced by the Company is a geographic area
which currently includes the United States of America and all other
countries in the world (the "Region"). Employee's employment with the
Company will bring Employee into close contact with the members and
other customers of the Company and with the trade secrets and other
confidential affairs of the Company. Employee has not previously
been employed in the telecommunications industry and will derive
substantial information concerning the telecommunication industry, key
customers, technology and opportunities for related businesses as a
result of his employment by the Company and at the expense of the
Company. The Company has a significant interest in protecting its
proprietary interest in, and the good will associated with, the
foregoing. As used in this Section 4, the term "Restricted Period"
means the period of three years following termination of Employee's
employment with the Company (whether for cause, upon expiration of the
employment period or otherwise).
B. PERIOD OF EMPLOYMENT: During the term of Employee's employment
hereunder, Employee shall not, directly or indirectly, either as an
employee, employer, consultant, agent, principal, partner,
stockholder, corporate officer, director, or in any other individual
or representative capacity, engage or participate in or acquire, hold,
or retain any interest in any business which is competitive with the
Business of the Company in any location, or any business selling to or
doing business with the Company, unless such participation or interest
is fully disclosed to the Company and approved by a majority of the
Company's Board of Directors. Subject to the foregoing, Employee may
acquire, hold or retain equity ownership of any company, provided that
such equity ownership does not exceed five percent (5%) of the issued
and outstanding shares of the voting stock of such company.
C. RESTRICTED PERIOD: During the Restricted Period, unless the Company
and Employee shall otherwise agree in writing, Employee shall not, (i)
compete directly with the Company in the Region; (ii) enter into the
employ of, or render any services to, as an independent contractor or
otherwise, any person or entity engaged in the Business (or any aspect
thereof) in competition with the Company in the Region; (iii) become
interested, as an individual, partner, co-venturer, shareholder,
officer, director, employee, principal, agent, trustee or in any other
relationship or capacity, in any person or entity engaged in the
Business (or any aspect thereof) in competition with the Company in
the Region; or (iv) on his own behalf or on behalf of or as an
employee or agent of any other person or business, contact or approach
any person or business wherever located, with a view to selling or
assisting others to sell products or services substantially competing
with the Business. The Company and Employee shall meet periodically
to review the kinds of businesses each deems to be in competition with
the Company in the Region. They shall seek to reach agreement as to
such kinds of businesses solely for the purposes of this
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Agreement. Any such agreement shall not be indicative of what
business or businesses may be in competition with the Company for any
other purpose. In the event such periodic reviews do not occur,
competing kinds of businesses shall be those contemplated by the term
"Business" in Subsection 4.A.
D. ENFORCEABILITY: If any portion of Section 4 is held to be illegal,
unenforceable, void, or voidable, the remainder shall remain in full
force and effect, and Section 4 shall be deemed altered and amended to
the minimum extent necessary to bring it within the legal requirements
of enforceability.
5. UNIQUE SERVICES: Employee hereby represents and agrees that the services
to be performed under the terms of this Agreement are of a special, unique,
unusual, extraordinary, and intellectual character that gives them a
peculiar value, the loss of which cannot be reasonably or adequately
compensated in damages in any action at law. Employee, therefore,
expressly agrees that the Company, in addition to any rights or remedies
that the Company might possess, shall be entitled to injunctive and other
equitable relief to prevent or remedy a breach of this Agreement by
Employee.
6. INDEMNIFICATION: The Company shall defend Employee against all claims made
against Employee, and it shall indemnify Employee for all losses sustained
by Employee, in direct consequence of the proper and reasonable discharge
of Employee's duties on the Company's behalf, including any claim brought
against, or any loss sustained by, Employee in his role as an officer,
director or employee of the Company, provided that the Employee promptly
notifies the Company in writing of any such claim, gives the Company full
authority for the conduct of such defense and, at the sole expense of the
Company, such expense to be reasonable, participates in and aids the
Company's counsel by furnishing such time, information, expertise and
assistance as is needed and reasonably requested for such defense.
7. CONFIDENTIAL INFORMATION: Employee acknowledges that in his employment
hereunder, and during any prior period of association with the Company, he
has occupied and will continue to occupy a position of trust and
confidence. During the period of Employee's employment hereunder and the
Restricted Period thereafter, Employee shall not, except as may be required
to perform his duties hereunder or as required by applicable law, without
limitation in time or until such information shall have become public other
than by Employee's unauthorized disclosure, disclose to others or use,
whether directly or indirectly, any Confidential Information regarding the
Company. "Confidential Information" shall mean information about the
Company, and its respective clients and customers that is not disclosed by
the Company that was learned by Employee in the course of his employment by
the Company, including (without limitation) any proprietary knowledge,
trade secrets, data, formulae, information and client and customer lists,
pricing policies, suppliers, market strategies, product development
concepts and all papers, resumes, and records (including computer records)
of the documents containing such Confidential Information. Employee
acknowledges that such Confidential Information is specialized, unique in
nature and of great value to the Company, and that such information gives
the Company a competitive advantage. The Employee agrees to deliver or
return to the Company, at the Company's request at any time or upon
termination or expiration of his employment or as soon thereafter as
possible, all documents, computer tapes and disks, records, lists, data,
drawings, prints, notes and written information (and all copies thereof)
furnished by the Company or prepared by the Employee during the term of his
employment by the Company.
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8. Compensation:
A. SALARY: The Company shall pay Employee an annual base salary of
$ 250,000.00 ("Salary"), payable in equal monthly installments on the
first day of each month or at such other time or times as Employee and
the Company shall agree. Except as otherwise provided herein, the
Company's obligation to pay Employee's Salary under this Agreement
shall cease as of the date of termination of Employee's employment.
B. BONUS: As determined by the Compensation Committee of the Board of
Directors of the Company, Employee shall be eligible for a bonus
("Bonus") as and when bonuses are paid to other officers and or
employees.
9. TAX WITHHOLDING: The Company shall have the right to deduct or withhold
from the compensation due to Employee hereunder any and all sums required
for any and all federal, social security, state and local taxes,
assessments or charges now applicable or that may be enacted and become
applicable in the future.
10. EMPLOYEE BENEFITS:
A. VACATION TIME AND SICK LEAVE: Employee shall be entitled to ten (10)
days of vacation and five (5) days of sick leave without loss of
compensation each year during the Employment Term. For the purposes
of this paragraph, a year shall begin on the effective date of this
Agreement as set forth above. In the event that Employee takes
vacation time or sick leave in excess of the minimum numbers set forth
in this paragraph, the Board of Directors shall determine whether or
not Employee shall receive compensation for such excess days. Unless
otherwise established by the Company's Board of Directors, in the
event that Employee does not for any reason take the total amount of
vacation time authorized during any year, he shall be deemed to have
waived any entitlement to vacation time for that year. Sick days may
not be accumulated.
B. ADDITIONAL BENEFITS: Employee shall be entitled to all employment
benefits made available to other employees of the Company and its
affiliates, commensurate with Employee's position and title with the
Company. Such benefits shall include, but are not limited to, health
insurance, dental insurance, disability insurance and life insurance,
and such pension and retirement plans as are adopted from time to time
by the Company.
C. EXPENSE REIMBURSEMENT: During the Employment Term, the Employee
shall be entitled to receive prompt reimbursement of all properly
approved expenses incurred by him in the performance of his duties
hereunder, including but not limited to all expenses associated with
travel and entertainment on behalf of the Company, telephone and
facsimile costs, and cellular telephone expense, and any approved
professional expense of bar dues and affiliations.
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11. TERMINATION OF THE AGREEMENT:
A. TERMINATION FOR CAUSE: Subject to Clause G of this Section 11, the
Company may terminate Employee's employment under this Agreement for
"Cause," at any time, but only in the event of (a) Employee's
conviction of a felony (provided, however, that following indictment
for a felony, and prior to conviction, the Company may, without
limiting or modifying in any other way its obligations under this
Agreement, suspend Employee from the performance of his duties
hereunder), or (b) a proper, reasonable and good faith determination
by the Company s Board of Directors that Employee has (1) neglected
his material duties, over an unreasonable period of time, or performed
his material duties, in an incompetent manner, over an unreasonable
period of time (2) committed fraudulent or dishonest actions with
respect to or which have harmed the Company, or (3) deliberately
injured or attempted to injure the Company provided, however, that
Employee shall not be deemed to have been terminated for Cause unless
and until there shall have been delivered to him a copy of a
resolution duly adopted by the affirmative vote of a majority of the
entire membership of the Board of Directors of the Company finding
that in the good faith opinion of the Board of Directors following
notice to Employee and the opportunity to be heard he was guilty of or
engaged in such conduct constituting Cause as set forth herein and
specifying the particulars thereof in detail.
B. EFFECT OF TERMINATION FOR CAUSE: In the event of termination of
Employee for cause as set forth in Subsection 11.A, or a voluntary
termination by Employee in breach of this Agreement without consent of
the Company Employee shall have no right to any bonuses, salaries,
benefits or entitlements other than those accrued or required by law
or specifically provided under the terms of the applicable plan
document. Payment of any further bonuses or other salaries claimed by
Employee will be in the sole and absolute discretion of the Board of
Directors of the Company and Employee will have no entitlement
thereto.
C. DISABILITY AND DEATH: Subject to Clause G of this Section 11, if,
during the Employment Term, Employee should die or suffer any physical
or mental illness that renders him incapable of fulfilling his
obligations under this Agreement, and such incapacity exists or may
properly and reasonably be expected to exist for more than ninety (90)
calendar days in the aggregate, the Company may, upon five (5)
calendar days written notice to Employee, terminate this Agreement.
The determination of the Company that Employee is incapable of
fulfilling his obligations under this Agreement shall be final and
binding in the absence of fraud or manifest error. In the event of
termination under this Subsection 11.C, Employee, or his estate, shall
be entitled to an amount equal to six (6) months' Salary and any other
accrued compensation, plus such additional benefits, if any, as may be
approved by the Company's Board of Directors or Chief Executive
Officer. Employee, or his estate, shall, upon termination under the
terms of this Subsection 11.C, be further entitled to additional
compensation, to be calculated on a pro rata basis according to the
number of accrued vacation days, if any, not taken by Employee during
the year defined for the purposes of vacation, in which Employee was
terminated.
D. VOLUNTARY TERMINATION BY EMPLOYEE AT THE END OF THE EMPLOYMENT TERM:
Subject to Clause G of this Section 11, in the event of voluntary
termination by Employee at the end of the Initial Employment Term, or
any Extended Employment Term, Employee shall be entitled only to those
amounts that have accrued to the date of termination or are expressly
payable under the terms of the Company's applicable
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benefit plans or are required by applicable law. The Company may, in
its sole and absolute discretion, confer such other benefits or
payments as it determines, but Employee shall have no entitlement
thereto.
E. TERMINATION BY EMPLOYER AT THE END OF THE EMPLOYMENT TERM: Subject to
Clause G of this Section 11, in the event that Employee's employment
is terminated by the Company at the end of the Initial Employment Term
or any Extended Employment Term as a result of the Company's notice
specified in Section 1 above, Employee shall be treated as in
Subsection 11.D, but in addition shall be entitled to an amount equal
to one-half of the highest annual cash compensation of Employee during
the Employment Term. In addition to the severance benefit, such
Employee shall be entitled to Company-provided health benefits (under
the same terms as active employees) for six months following the
termination. The severance benefit shall be provided in a lump sum at
the time of termination or in equal monthly installments over the
severance period.
F. TERMINATION BY EMPLOYER DURING THE EMPLOYMENT TERM: Subject to Clause
G of this Section 11, in the event of termination by the Employer
other than at the end of the Initial Employment Term or Extended
Employment Term, other than for Cause under Subsection 11.A, Employee
shall (i) in the event that such termination occurs prior to the
second anniversary hereof, be entitled to an amount equal to one time
the highest annual salary of Employee during the Employment Term, plus
an additional amount equal to the remaining compensation for the first
year following the date hereof had such termination not occurred, or
(ii) in the event that such termination occurs on or after the second
anniversary hereof, an amount equal to the highest annual cash
compensation of Employee during the Employment term; in each case,
with benefits under all Company plans to continue during the entire
severance period.
G. TERMINATION FOLLOWING CERTAIN CORPORATE EVENTS: If the Employee or
the Company or any successor terminates this Agreement at any time
during the Employment Term following the announcement of a change in
control, a change in the Chairman of the Board or the material change
in ownership or takeover or a merger or consolidation to which the
Company is not the acquiror or the sale of all or any major part of
the assets of the Company outside the ordinary course of business, the
Employee shall be entitled to an amount equal to three times the
highest annual compensation paid hereunder, payable in a lump sum.
In addition to the foregoing, any outstanding stock options (including
substituted stock options of the acquiring or surviving company in
such merger or acquisition) or other benefits under any Company Plans
which have not vested in accordance with their terms will become fully
vested and exercisable at the time of such termination. For purposes
of this Subsection 11.G, Employee shall be entitled to treat a
demotion in title or function as a termination under this Subsection
11.G.
H. NONCOMPETITION; CONFIDENTIALITY: Nothing in this Section 11 shall
affect the rights of the parties under Sections 4 and 7 above.
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12. ASSIGNMENT OF INTELLECTUAL PROPERTY RIGHTS:
A. DEFINITION OF "INVENTIONS": As used herein, the term "Inventions"
shall mean all inventions, discoveries, improvements, trade secrets,
formulas, techniques, data, programs, systems, specifications,
documentation, algorithms, flow charts, logic diagrams, source codes,
processes, and other information, including works-in-progress, whether
or not subject to patent, trademark, copyright, trade secret, or mast
work protection, and whether or not reduced to practice, which are
made, created, authored, conceived, or reduced to practice by
Employee, either alone or jointly with others, during the period of
employment with the Company and for one year following the termination
of Employee's employment with the Company which (1) relate to the
actual or anticipated business, activities, research, or
investigations of the Company, or (2) result from or is suggested by
work performed by Employee for the Company (whether or not made or
conceived during normal working hours or on the premises of the
Company), or (3) which result, to any extent, from use of the
Company's premises or property.
B. WORK FOR HIRE: Employee expressly acknowledges that all copyrightable
aspects of the Inventions are to be considered "works made for hire"
within the meaning the Copyright Act of 1976, as amended (the "Act"),
and that the Company is to be "author" within the meaning of such Act
for all purposes. All such copyrightable works, as well as all copies
of such works in whatever medium fixed or embodied, shall be owned
exclusively by the Company as of its creation, and Employee hereby
expressly disclaims any and all interest in any of such copyrightable
works and waives any right of DROIT MORALE or similar rights.
C. Assignment: Employee acknowledges and agrees that all Inventions
constitute trade secrets of the Company or the member of the Company,
as applicable, and shall be the sole property of the Company, as
applicable or any other entity designated by the Company. In the
event that title to any or all of the Inventions or any part or
element thereof, may not, by operation of law, vest in the Company, as
applicable, or such Inventions may be found as a matter of law not to
be "works made for hire" within the meaning of the Act, Employee
hereby conveys and irrevocably assigns to the Company, as applicable,
without further consideration, all his right, title and interest,
throughout the universe and in perpetuity, in all Inventions and all
copies of them, in whatever medium fixed or embodied, and in all
written records, graphics, diagrams, notes, or reports relating
thereto in Employee's possession or under his control, including, with
respect to any of the foregoing, all rights of copyright, patent,
trademark, trade secret, mask work, and any and all other proprietary
rights therein, the right to modify and create derivative works, the
right to invoke the benefit of any priority under any international
convention and all rights to register and renew same.
D. PROPRIETARY NOTICES; NO FILINGS; WAIVER OF MORAL RIGHTS: Employee
acknowledges that all Inventions shall at the sole option of the
Company bear the Company's patent, copyright, trademark, trade secret,
and mask work notices. Employee agrees not to file any patent,
copyright, or trademark applications relating to any Invention, except
with prior written consent of an authorized representative of the
Company. Employee hereby expressly disclaims any and all interest in
any Inventions and waives any right of DROIT MORALE or similar rights,
such as rights of integrity or the right to be attributed as the
creator of the Invention.
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E. FURTHER ASSURANCES: Employee agrees to assist the Company, or any
party designated by the Company, promptly on the Company's request,
whether before or after the termination of employment however such
termination may occur, in perfecting, registering, maintaining, and
enforcing, in any jurisdiction, the Company's rights in the Inventions
by performing all acts and executing all documents and instruments
deemed necessary or convenient by the Company, including, by way of
illustration and not limitation:
1. Executing assignments, applications, and other documents and
instruments in connection with (i) obtaining patents, copyrights,
trademarks, mask works, or other proprietary protections for the
Inventions and (ii) confirming the assignment to the Company of
all right, title, and interest in the Inventions or otherwise
establishing the Company's exclusive ownership rights therein.
2. Cooperating in the prosecution of patent, copyright, trademark
and mask work applications, as well as in the enforcement of the
Company's rights in the Inventions, including, but not limited
to, testifying in court or before any patent, copyright,
trademark or mask work registry office, or any other
administrative body.
Employee will be reimbursed for all reasonable out-of-pocket
costs incurred in connection with the foregoing, if such
assistance is requested by the Company after the termination of
employment. In addition, to the extent that, after the
termination of employment for whatever reason, Employee's
technical expertise shall be required in connection with the
fulfillment of the aforementioned obligations, the Company will
compensate Employee at a reasonable rate for the time actually
spent by Employee at the Company's request rendering such
assistance.
F. POWER OF ATTORNEY: Employee hereby irrevocably appoints the Company
to be his Attorney-in-Fact in his name and on his behalf to execute
any document and to take any action and generally to use his name for
the purpose of giving to the Company the full benefit of the
assignment provisions set forth above.
G. CONSENT TO USE OF NAME: The Company reserves the right (but shall not
have the obligation) to publicize Employee's name and background in
connection with the marketing of the Inventions or the enforcement of
the Company's rights therein. Employee is responsible for supplying
to the Company his resume or curriculum vitae for such purposes.
Employee agrees that the Company shall have the sole control over the
type style, type size, or placement of his name on any materials, or
over the final content of any biography used in said material.
H. DISCLOSURE OF INVENTIONS: Employee will make full and prompt
disclosure to the Company of all Inventions subject to assignment to
the Company, and all information relating thereto in Employee's
possession or under his control as to possible applications and use
thereof.
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I. NO VIOLATION OF THIRD PARTY RIGHTS: Employee represents, warrants,
and covenants that he:
1. will not, in the course of employment, infringe upon or violate
any proprietary rights of any third party (including, without
limitation, any third party confidential relationships, patents,
copyrights, mask works, trade secrets, or other proprietary
rights);
2. is not a party to any conflicting agreements with third parties
which will prevent him from fulfilling the terms of employment
and the obligations of this Agreement;
3. does not have in his possession any confidential or proprietary
information or documents belonging to others and will not
disclose to the Company, use, or induce the Company to use, any
confidential or proprietary information or documents of others;
and
4. agrees to respect any and all valid obligations which he may now
have to prior employers or to others relating to confidential
information, inventions, or discoveries which are the property of
those prior employers or others, as the case may be.
Employee has supplied or shall promptly supply to the Company a
copy of each written agreement to which Employee is subject
(other than any agreement to which the Company is a party) which
includes any obligation of confidentiality, assignment of
Inventions, or non-competition.
Employee agrees to indemnify and save harmless the Company from
any loss, claim, damage, costs or expenses of any kind (including
without limitation, reasonable attorney's fees) to which the
Company may be subjected by virtue of a breach by Employee of the
foregoing representations, warranties, and covenants.
J. OBLIGATIONS UPON TERMINATION: In the event of any termination of his
employment, for whatever reason, Employee will promptly (1) deliver to
the Company all physical property, discs, documents, notes, printouts,
and all copies thereof and other materials in Employee's possession or
under Employee's control pertaining to the business of the Company,
including, but not limited to, those embodying or relating to the
Inventions and the Confidential Information (as defined in Sections 7
and 12.A herein), (2) deliver to the Company's patent department or
legal department or other person designated by the Company all
notebooks and other data relating to research or experiments or other
work conducted by Employee in the scope of employment or any
Inventions made, created, authored, conceived, or reduced to practice
by Employee, either alone or jointly with others, and (3) make full
disclosure relating to any Inventions.
If Employee would like to keep certain property, such as material
relating to professional societies or other non-confidential material,
upon the termination of employment with the Company, he agrees to
discuss such issues with the Company. Where such a request does not
put Confidential Information of the Company at risk, the Company will
customarily grant the request.
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Upon termination of employment with the Company, Employee's
obligations under this Section 12 shall survive and the Employee
shall, if requested by the Company, reaffirm Employee's recognition of
the importance of maintaining the confidentiality of the Company's
Confidential Information and reaffirm all of the Employee's
obligations set forth in this Section 12.
All payments due to Employee shall bear interest at the highest lawful
rate from the date such payment is due until the date actually paid by
the Company.
13. LIFE INSURANCE: The Company may, in its sole discretion, purchase such
life insurance policies as it deems necessary or appropriate, naming
Employee as the insured and the Company as beneficiary. Employee hereby
agrees to submit to any reasonable medical examination required for the
purchase of such insurance.
14. NOTICES: Any notices to be given hereunder by either party to the other
shall be in writing and may be transmitted by personal delivery or by
certified mail, return receipt requested. Mailed notices shall be
addressed to the parties as follows:
If notice is to the Company, to:
Digital Lightwave, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attn.: Chief Executive Officer
If notice is to Employee, to:
Xxxx X. Xxxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Either party may change its address by written notice in accordance with
this Section 14. Notices delivered personally shall be deemed communicated
as of the dates of actual receipt; mailed notices shall be deemed
communicated as of forty-eight (48) hours after the date of mailing.
15. ARBITRATION: Any controversy between the parties involving the
construction or application of any of the terms, provisions or conditions
of this Agreement or in any way connected with Employee's employment with
the Company, including but not limited to, breach of this Agreement,
termination or discharge, claims of age, gender, race or disability
discrimination, sexual harassment or civil rights violations shall, within
thirty days of the written notice to the other party, be submitted to final
and binding arbitration as follows:
A. The arbitration shall be held in Miami, Florida.
B. The arbitration shall be conducted by one arbitrator, who is a member
of the American Arbitration Association ("AAA") and in accordance with
the rules of the AAA then in effect, subject to the specific
exceptions set out in Subsection 15.C, unless both parties agree
otherwise. The arbitrator shall be chosen from a panel of persons
with knowledge of and experience in employment and employment law
issues.
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C. Notwithstanding any rule of the AAA to the contrary, (l) the parties
shall be entitled to conduct discovery (i.e., investigation of facts
through deposition and other means) which shall be governed by the
Florida Rules of Civil Procedure then in effect; (2) the arbitrator
shall have all power and authority relating to such discovery as are
allowed under the Florida Rules of Civil Procedure; (3) the arbitrator
shall apply Florida substantive law; (4) at the election and at the
expense of either party, a Court Reporter may record the hearing and
such recording will be the official record of the proceeding; and (5)
the arbitrator shall specify the basis for, and the type of damage
award, if any, entered.
D. The arbitrator's authority to order discovery and enter judgment shall
be final and binding. It may be enforced through an order of a court
of competent jurisdiction. Such judgment may be reviewed by a court
only on the grounds of bias, improper conduct of the arbitrator, abuse
of discretion, or violation of public policy.
Notwithstanding the foregoing agreement to arbitrate, either party may
apply to any court of competent jurisdiction for temporary restraining
orders, preliminary injunctions, permanent injunctions, or other
extraordinary relief, to remedy any actual or threatened unauthorized
disclosure of confidential information or unauthorized use, copying,
marketing, or distribution of confidential information. Such
application shall be made before the arbitrator is appointed and
assumes his or her responsibilities. The seeking of injunctive relief
shall not operate to prejudice the rights of the parties to arbitrate
their disputes.
16. ATTORNEYS' FEES AND COSTS: If either party fails to perform its respective
obligations under this Agreement, and the other party is thereby required
to incur attorneys' fees or other fees or costs, including but not limited
to the costs of arbitration, the party so incurring such fees and costs
shall be entitled to the payment of those fees and costs by the breaching
party.
17. ENTIRE AGREEMENT: This Agreement supersedes any and all other agreements,
either oral or in writing, between the parties hereto with respect to the
employment of Employee by the Company and contains all of the covenants and
agreements between the parties with respect to that employment in any
manner whatsoever. Each party to this Agreement acknowledges that no
representations, inducements, promises, or agreements, oral or written,
have been made by any party, or anyone acting on behalf of any party, which
are not embodied herein, and that no other agreement, statement, or promise
not contained in this Agreement shall be valid or binding on either party.
18. MODIFICATIONS: Any modification of this Agreement shall be effective only
if it is in writing and signed by both parties.
19. EFFECT OF WAIVER: The failure of either party to insist on strict
compliance with any of the terms, covenants, or conditions of this
Agreement by the other party shall not be deemed a waiver of that term,
covenant, or condition, nor shall any waiver or relinquishment of any right
or power at any one time or times be deemed a waiver or relinquishment of
that right or power for all or any other times.
20. PARTIAL INVALIDITY: If any provision of this Agreement is held by a court
of competent jurisdiction to be invalid, void, or unenforceable, the
remaining provisions shall nevertheless continue in full force without
being impaired or invalidated in any way, unless such partial invalidity
materially affects the intent of the parties.
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21. GOVERNING LAW: This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida.
22. ASSIGNABILITY: The rights and duties of either party hereunder shall not
be assignable by either party, except that this Agreement and all rights
and obligations hereunder may be assigned by the Company to, and be assumed
by, any corporation or other business entity which succeeds to all or
substantially all of the assets and business of the Company through merger,
consolidation, acquisition of assets, or other corporate reorganization.
23. SURVIVAL: The covenants, agreements, representations and warranties
contained in or made pursuant to this Agreement shall survive Employee's
termination of employment irrespective of any investigation made by or on
behalf of any party.
IN WITNESS WHEREOF, the parties have executed this Agreement effective as
of the day and year first above written.
DIGITAL LIGHTWAVE, INC.
By: /s/ Xxxxx X. Xxxx
------------------------
Name: Xxxxx X. Xxxx
----------------------
Title: President
---------------------
EMPLOYEE:
/s/ Xxxx X. Xxxxxx
---------------------------
Xxxx X. Xxxxxx
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